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BOOK     178.5.F85    c    1 


3    "^153    000t,333a    0 


I 


V7 


rr^ 


WHAT   PROHIBITION 
HAS  DONE  TO  AMERICA 


BY 


FABIAN   FRANKLIN 


m 


NEW  YORK 

HARCOURT,  BRACE  AND  COMPANY 


COPYRIGHT,    1922,    BY 
HARCOURT,    BRACK   AND    COMPANY,    INC. 


IQHQ 


PRINTED    IN    THE    U.  S.   A.   BY 

THE    QUINN    &    BODEN    COMPANY 

RAHWAY.    N.    J. 


FOREWORD 

"When  the  lazy  or  dull-witted  students  fail 
in  the  examination,"  said  a  wise  schoolmaster, 
"I  try  to  find  out  what  is  wrong  with  the  boys ; 
when  the  best  in  the  class  fail  to  pass,  I  try  to 
find  out  what  is  wrong  with  myself." 

The  Eighteenth  Amendment  is  treated  with 
contempt,  the  Volstead  act  for  its  enforcement 
is  violated  without  compunction,  by  countless 
thousands  of  our  best  citizens.  It  is  idle  to 
try  to  find  out  what  is  the  matter  with  these 
people;  they  are  as  good  as  we  have,  or  can 
ever  hope  to  have.  The  thing  to  do  is  to  find 
out  what  is  the  matter  not  with  the  law-break- 
ers but  with  the  law. 

How  the  Eighteenth  Amendment  is  a  crime 
against  the  Constitution  of  the  United  States ; 
how  it  violates  the  principle  which  lies  at  the 
bottom  of  respect  for  law;  how  it  makes  for 
despotism,  whether  by  a  majority  or  a  minor- 

iii 


iv  FOREWORD 

ity;  these  and  other  aspects  of  National  Pro- 
hibition are  briefly  discussed  in  this  book. 

Of  such  discussion  of  the  fundamental  issues 
of  Prohibition  there  has  been  a  lamentable 
dearth.  It  is  the  author's  hope  that  this  little 
book  will  contribute  in  some  degree  toward 
the  rescue  of  the  country  from  the  evils  to 
which  he  directs  attention — toward  its  return 
to  a  sound  view  of  the  relation  of  government 
to  life.  Unless  it  does  so  return,  the  injury 
already  done  to  American  institutions  and  to 
the  temper  of  American  life  will  prove  but  a 
foretaste  of  others  perhaps  even  more  destruc- 
tive of  the  spirit  of  liberty  and  individuality. 


CONTENTS 


CHAPTER  PAGE 

I     Perverting  the  Constitution        .       .         3 


II     Creating  a  Nation  of  Lawbreakers 

III  Destroying  our  Federal  System   . 

IV  How     the      Amendment      was      Put 

Through   ....... 

V    The  Law  Makers  and  the  Law  . 
VI    The  Law  Enforcers  and  the  Law 


VII  Nature  of  the  Prohibitionist  Tyranny  66 

VIII  One  Half  of  One  Per  Cent        .       .  82 

IX  Prohibition  and  Liberty         ...  91 

X  Prohibition  and  Socialism       .        .        .  iii 

XI  Is  There  Any  Way  Out?      ...  121 


13 
23 

35 
48 

55 


WHAT  PROHIBITION  HAS  DONE 
TO  AMERICA 


CHAPTER  I 
PERVERTING  THE  CONSTITUTION 

The  object  of  a  Constitution  like  that  of  the 
United  States  is  to  establish  certain  funda- 
mentals of  government  in  such  a  way  that 
they  cannot  be  altered  or  destroyed  by  the 
mere  will  of  a  majority  of  the  people,  or  by  the 
ordinary  processes  of  legislation.  The  fram- 
ers  of  the  Constitution  saw  the  necessity  of 
making  a  distinction  between  these  funda- 
mentals and  the  ordinary  subjects  of  law-mak- 
ing, and  accordingly  they,  and  the  people  who 
gave  their  approval  to  the  Constitution,  de- 
liberately arrogated  to  themselves  the  power 
to  shackle  future  majorities  in  regard  to  the 
essentials  of  the  system  of  government  which 
they  brought  into  being.  They  did  this  with 
a  clear  consciousness  of  the  object  which  they 
had  in  view — the  stability  of  the  new  govern- 
ment  and   the   protection   of  certain   funda- 


4         WHAT  PROHIBITION  HAS  DONE 

mental  rights  and  liberties.  But  they  did  not 
for  a  moment  entertain  the  idea  of  imposing 
upon  future  generations,  through  the  extraor- 
dinary sanctions  of  the  Constitution,  their 
views  upon  any  special  subject  of  ordinary 
legislation.  Such  a  proceeding  would  have 
seemed  to  them  far  more  monstrous,  and  far 
less  excusable,  than  that  tyranny  of  George 
III  and  his  Parliament  which  had  given  rise 
to  the  American  Revolution. 

Until  the  adoption  of  the  Eighteenth 
Amendment,  the  Constitution  of  the  United 
States  retained  the  character  which  properly 
belongs  to  the  organic  law  of  a  great  Federal 
Republic.  The  matters  with  which  it  dealt 
were  of  three  kinds,  and  three  only — the  divi- 
sion of  powers  as  between  the  Federal  and  the 
State  governments,  the  structure  of  the  Fed- 
eral government  itself,  and  the  safeguarding 
of  the  fundamental  rights  of  American  citi- 
zens. These  were  things  that  it  was  felt 
essential  to  remove  from  the  vicissitudes 
attendant  upon  the  temper  of  the  majority  at 
any  given  time.    There  was  not  to  be  any 


PERVERTING  THE  CONSTITUTION        5 

doubt  from  year  to  year  as  to  the  limits  of 
Federal  power  on  the  one  hand  and  State 
power  on  the  other;  nor  as  to  the  structure  of 
the  Federal  government  and  the  respective 
functions  of  the  legislative,  executive,  and 
judicial  departments  of  that  government;  nor 
as  to  the  preservation  of  certain  fundamental 
rights  pertaining  to  life,  liberty  and  property. 
That  these  things,  once  laid  down  in  the  or- 
ganic law  of  the  country,  should  not  be  sub- 
ject to  disturbance  except  by  the  extraordi- 
nary and  difficult  process  of  amendment  pre- 
scribed by  the  Constitution  was  the  dictate  of 
the  highest  political  wisdom;  and  it  was  only 
because  of  the  manifest  wisdom  upon  which 
it  was  based  that  the  Constitution,  in  spite  of 
many  trials  and  drawbacks,  commanded,  dur- 
ing nearly  a  century  and  a  half  of  momen- 
tous history,  the  respect  and  devotion  of  gen- 
eration after  generation  of  American  citi- 
zens. 

Although  the  Constitution  of  the  United 
States  has  been  pronounced  by  an  illustrious 
British  statesman  the  most  wonderful  work 


6         WHAT  PROHIBITION  HAS  DONE 

ever  struck  off  at  a  given  time  by  the  brain 
and  purpose  of  man,  it  would  be  not  only 
folly,  but  superstition,  to  regard  it  as  perfect. 
It  has  been  amended  in  the  past,  and  will  need 
to  be  amended  in  the  future.  The  Income- 
Tax  Amendment  enlarged  the  power  of  the 
Federal  government  in  the  field  of  taxation, 
and  to  that  extent  encroached  upon  a  domain 
theretofore  reserved  to  the  States.  The 
amendment  which  referred  the  election  of 
Senators  to  popular  vote,  instead  of  having 
them  chosen  by  the  State  Legislatures,  altered 
a  feature  of  the  mechanism  originally  laid 
down  for  the  setting  up  of  the  Federal  gov- 
ernment. The  amendments  that  were  adopted 
as  a  consequence  of  the  Civil  War  were  de- 
signed to  put  an  end  to  slavery  and  to  guar- 
antee to  the  negroes  the  fundamental  rights 
of  freemen.  With  the  exception  of  the 
amendments  adopted  almost  immediately  after 
the  framing  of  the  Constitution  itself,  and 
therefore  usually  regarded  as  almost  form- 
ing part  of  the  original  instrument,  the 
amendments   just   referred   to   are   the   only 


PERVERTING  THE  CONSTITUTION        7 

ones  that  had  been  adopted  prior  to  the 
Eighteenth ;  and  it  happens  that  these  amend- 
ments— the  Sixteenth,  the  Seventeenth,  and 
the  group  comprising  the  Thirteenth,  Four- 
teenth and  Fifteenth — deal  respectively  with 
the  three  kinds  of  things  with  which  the  Con- 
stitution was  originally,  and  is  legitimately, 
concerned:  the  division  of  powers  between 
the  Federal  and  the  State  governments,  the 
structure  of  the  Federal  government  itself, 
the  safeguarding  of  the  fundamental  rights 
of  American  citizens. 

One  of  the  gravest  indictments  against  the 
Eighteenth  Amendment  is  that  it  has  struck  a 
deadly  blow  at  the  heart  of  our  Federal  sys- 
tem, the  principle  of  local  self-government. 
How  sound  that  indictment  is,  how  profound 
the  injury  which  National  Prohibition  inflict- 
ed upon  the  States  as  self-governing  entities, 
will  be  considered  in  a  subsequent  chapter. 
At  this  point  we  are  concerned  with  an  objec- 
tion even  more  vital  and  more  conclusive. 
Upon  the  question  of  centralization  or  de- 
centralization,   of    Federal    power   or    State 


8        WHAT  PROHIBITION  HAS  DONE 

autonomy,  there  is  room  for  rational  differ- 
ence of  opinion.  But  upon  the  question 
whether  a  regulation  prescribing  the  personal 
habits  of  individuals  forms  a  proper  part  of 
the  Constitution  of  a  great  nation  there  is  no 
room  whatever  for  rational  difference  of  opin- 
ion. Whether  Prohibition  is  right  or  wrong, 
wise  or  unwise,  all  sides  are  agreed  that  it  is 
a  denial  of  personal  liberty.  Prohibitionists 
maintain  that  the  denial  is  justified,  like  other 
restraints  upon  personal  liberty  to  which  we 
all  assent;  anti-prohibitionists  maintain  that 
this  denial  of  personal  liberty  is  of  a  vitally 
different  nature  from  those  to  which  we  all 
assent.  That  it  is  a  denial  of  personal  liberty 
is  undisputed;  and  the  point  with  which  we 
are  at  this  moment  concerned  is  that  to  en- 
trench a  denial  of  liberty  behind  the  mighty 
ramparts  of  our  Constitution  is  to  do  precisely 
the  opposite  of  what  our  Constitution — or  any 
Constitution  like  ours — is  designed  to  do. 
The  Constitution  withdraws  certain  things 
from  the  control  of  the  majority  for  the  time 
being — withdraws  them  from  the  province  of 


PERVERTING  THE  CONSTITUTION       9 

ordinary  legislation — for  the  purpose  of  safe- 
guarding liberty;  the  Eighteenth  Amendment 
seizes  upon  the  mechanism  designed  for  this 
purpose,  and  perverts  it  to  the  diametrically 
opposite  end,  that  of  safeguarding  the  denial 
of  liberty.  All  history  teaches  that  liberty 
is  in  danger  from  the  tyranny  of  majorities  as 
well  as  from  that  of  oligarchies  and  monarch- 
ies; accordingly  the  Constitution  says:  No 
mere  majority,  no  ordinary  legislative  pro- 
cedure, shall  be  competent  to  deprive  the  peo- 
ple of  the  liberty  that  is  hereby  guaranteed 
to  them.  But  the  Eighteenth  Amendment 
says:  No  mere  majority,  no  mere  legislative 
procedure,  shall  be  competent  to  restore  to  the 
people  the  liberty  that  is  hereby  taken  away 
from  them. 

Thus,  quite  apart  from  all  questions  as  to 
the  merits  of  Prohibition  in  itself,  the  Eight- 
eenth Amendment  is  a  Constitutional  mon- 
strosity. That  this  has  not  been  more  gen- 
erally and  more  keenly  recognized  is  little  to 
the  credit  of  the  American  people,  and  still 
kss  to  the  credit  of  the  American  press  and 


10       WHAT  PROHIBITION  HAS  DONE 

of  those  who  should  be  the  leaders  of  public 
opinion.  One  circumstance  may,  however, 
be  cited  which  tends  to  extenuate  in  some  de- 
gree this  glaring  failure  of  political  sense  and 
judgment.  There  have  long  been  Prohibi- 
tion enactments  in  many  of  our  State  Consti- 
tutions, and  this  has  made  familiar  and  com- 
monplace the  idea  of  Prohibition  as  part  of 
a  Constitution.  But  our  State  Constitutions 
are  not  Constitutions  in  anything  like  the 
same  sense  as  that  which  attaches  to  the  Con- 
stitution of  the  United  States.  Most  of  our 
State  Constitutions  can  be  altered  with  little 
more  difficulty  than  ordinary  laws ;  the  process 
merely  takes  a  little  more  time,  and  offers  no 
serious  obstacle  to  any  object  earnestly  desired 
by  a  substantial  majority  of  the  people  of  the 
State.  Accordingly  our  State  Constitutions 
are  full  of  a  multitude  of  details  which  really 
belong  in  the  ordinary  domain  of  statute  law; 
and  nobody  looks  upon  them  as  embodying 
that  fundamental  and  organic  law  upon  whose 
integrity  and  authority  depends  the  life  and 
safety  of  our  institutions.     The  Constitution 


PERVERTING  THE  CONSTITUTION      11 

of  the  United  States,  on  the  other  hand,  is  a 
true  Constitution — concerned  only  with  fun- 
damentals, and  guarded  against  change  in  a 
manner  suited  to  the  preservation  of  funda- 
mentals. To  put  into  it  a  regulation  of  per- 
sonal habits,  to  buttress  such  a  regulation  by 
its  safeguards,  is  an  atrocity  for  which  no 
characterization  can  be  too  severe. 

And  it  is  something  more  than  an  atrocity; 
the  Eighteenth  Amendment  is  not  only  a  per- 
version but  also  a  degradation  of  the  Constitu- 
tion. In  what  precedes,  the  emphasis  has 
been  placed  on  the  perversion  of  what  was 
designed  as  a  safeguard  of  liberty  into  a  safe- 
guard of  the  denial  of  liberty.  But  even  if 
no  issue  of  liberty  entered  into  the  case,  an 
amendment  that  embodied  a  mere  police  reg- 
ulation would  be  a  degradation  of  the  Con- 
stitution. In  the  earlier  days  of  our  history 
— indeed  up  to  a  comparatively  recent  time — 
if  any  one  had  suggested  such  a  thing  as  a 
Prohibition  amendment  to  the  Federal  Con- 
stitution, he  would  have  been  met  not  with 
indignation    but    with    ridicule.      It    would 


12       WHAT  PROHIBITION  HAS  DONE 

not  have  been  the  monstrosity,  but  the  ab- 
surdity, of  such  a  proposal,  that  would  have 
been  first  in  the  thought  of  almost  any  intelli- 
gent American  to  whom  it  might  have  been 
presented.  He  would  have  felt  that  such  a 
feature  was  as  utterly  out  of  place  in  the  Con- 
stitution of  the  United  States  as  would  be  a 
statute  regulating  the  height  of  houses  or  the 
length  of  women's  skirts.  It  might  be  as 
meritorious  as  you  please  in  itself,  but  it  didn't 
belong  in  the  Constitution.  If  the  Constitu- 
tion is  to  command  the  kind  of  respect  which 
shall  make  it  the  steadfast  bulwark  of  our 
institutions,  the  guaranty  of  our  union  and  our 
welfare,  it  must  preserve  the  character  that 
befits  such  an  instrument.  The  Eighteenth 
Amendment,  if  it  were  not  odious  as  a  perver- 
sion of  the  power  of  the  Constitution,  would 
be  contemptible  as  an  offense  against  its 
dignity. 


CHAPTER  II 

CREATING  A  NATION  OF  LAW- 
BREAKERS 

In  his  baccalaureate  address  as  President  of 
Yale  University,  in  June,  1922,  Dr.  Angell 
felt  called  upon  to  say  that  in  this  country 
"the  violation  of  law  has  never  been  so  general 
nor  so  widely  condoned  as  at  present,"  and  to 
add  these  impressive  words  of  appeal  to  the 
young  graduates : 

This  is  a  fact  which  strikes  at  the  very  heart 
of  our  system  of  government,  and  the  young  man 
entering  upon  his  active  career  must  decide 
whether  he  too  will  condone  and  even  abet  such 
disregard  of  law,  or  whether  he  will  set  his  face 
firmly  against  such  a  course. 

It  is  safe  to  say  that  there  has  never  been  a  time 
in  the  history  of  our  country  when  the  Presi- 
dent of  a  great  university  could  have  found 

13 


14       WHAT  PROHIBITION  HAS  DONE 

it  necessary  to  address  the  young  Americans 
before  him  in  any  such  language.  There  has 
never  been  a  time  when  deliberate  disregard 
of  law  was  habitual  among  the  classes  which 
represent  culture,  achievement,  and  wealth — 
the  classes  among  whom  respect  for  law  is 
usually  regarded  as  constant  and  instinctive. 
That  such  disregard  now  prevails  is  an  asser- 
tion for  which  President  Angell  did  not  find 
it  necessary  to  point  to  any  evidence.  It  is 
universally  admitted.  Friends  of  Prohibi- 
tion and  enemies  of  Prohibition,  at  odds  on 
everything  else,  are  in  entire  agreement  upon 
this. 

It  is  high  time  that  thinking  people  went 
beyond  the  mere  recognition  of  this  fact  and 
entered  into  a  serious  examination  of  the  cause 
to  which  it  is  to  be  ascribed.  Perhaps  I 
should  say  the  causes,  for  of  course  more 
causes  than  one  enter  into  the  matter.  But 
I  say  the  cause,  for  the  reason  that  there  is  one 
cause  which  transcends  all  others,  both  in 
underlying  importance  and  in  the  permanence 
of  its  nature.     That  cause  does  not  reside  in 


CREATING  LAW-BREAKERS  ll 

any  special  extravagances  that  there  may  be  in 
the  Volstead  act.  The  cardinal  grievance 
against  which'the  unprecedented  contempt  for 
law  among  high-minded  and  law-abiding  peo- 
ple is  directed  is  not  the  Volstead  act  but  the 
Eighteenth  Amendment.  The  enactment  of 
that  Amendment  was  a  monstrosity  so  gross 
that  no  thinking  American  thirty  years  ago 

would  have  regarded  it  as  a  possibility.  ^  It  is 

not  only  a  crim£._against  the  Constitution  of 
the  United  ^States,  and  not  only  a  crime 
against  the  whole  spirit  of  our  Federal  sys- 
temj7 but ^ ^ime  against  the  first  principles 
of  rational  governmeat.  " 

The  object  of  the  Constitution  of  the  United 
States  is  to  imbed  in  the  organic  law  of  the 
country  certain  principles,  and  certain  ar- 
rangements for  the  distribution  of  power, 
which  shall  be  binding  in  a  peculiar  way  upon 
generation  after  generation  of  the  American 
people.  Once  so  imbedded,  it  may  prove  to 
be  impossible  by  anything  short  of  a  revolu- 
tion to  get  them  out,  even  though  a  very  great 
majority  of  the  people  should  desire  to  do  so. 


16       WHAT  PROHIBITION  HAS  DONE 

If  laws  regulating  the  ordinary  personal  con- 
duct of  individuals  are  to  be  entrenched  in 
this  way,  one  of  the  first  conditions  of  respect 
for  law  necessarily4al4s4o^  the  graund.  That 
practical  maxim  which  is  always  appealed  to, 
and  rightly  appealed  to,  in  behalf  of  an  un- 
popular law — the  maxim  that  if  the  law  is 
bad  the  way  to  get  it  repealed  is  to  obey  it  and 
enforce  it — loses  its  validity.  If  a  majority 
cannot  repeal  the  law — if  it  is  perfectly  con- 
ceivable, and  even  probable,  that  generation 
after  generation  may  pass  without  the  will  of 
the  majority  having  a  chance  to  be  put  into 
effect — then  it  is  idle  to  expect  intelligent 
freemen  to  bow  down  in  meek  submission  to 
its  prescriptions. 

Apart  from  the  question  of  distribution  of 
governmental  powers,  it  was  until  recently  a 
matter  of  course  to  say  that  the  purpose  of  the 
Constitution  was  to  protect  the  rights  of  mi- 
norities. That  it  might  ever  be  perverted  to 
exactly  the  opposite  purpose — to  the  purpose 
of  fastening  not  only  upon  minorities  but  even 
upon  majorities  for  an  unlimited  future  the 


CREATING  LAW-BREAKERS  17 

will  of  the  majority  for  the  time  being — cer- 
tainly never  crossed  the  mind  of  any  of  the 
great  men  who  framed  the  Constitution  of  the 
United  States.  Yet  this  is  precisely  what  the 
Prohibition  mania  has  done.  The  safeguards 
designed  to  protect  freedom  against  thought- 
less or  wanton  invasion  have  been  seized  upon 
as  a  means  of  protecting  a  denial  of  freedom 
against  any  practical  possibility  of  repeal. 
Upon  a  matter  concerning  the  ordinary  prac- 
tices of  daily  life,  we  and  our  children  and 
our  children's  children  are  deprived  of  the 
possibility  of  taking  such  action  as  we  think 
fit  unless  we  can  obtain  the  assent  of  two- 
thirds  of  both  branches  of  Congress  and  the 
Legislatures  of  three-fourths  of  the  States. 
To  live  under  such  a  dispensation  in  such  a 
matter  is  to  live  without  the  first  essentials  of 
a  government  of  freemen. 

I  admit  that  all  this  is  not  clearly  in  the 
minds  of  most  of  the  people  who  break  the 
law,  or  who  condone  or  abet  the  breaking  of 
the  law.  Nevertheless  it  is  virtually  in  their 
minds.     For,  whenever  an  attempt  is  made  to 


18       WHAT  PROHIBITION  HAS  DONE 

bring  about  a  substantial  change  in  the  Pro- 
hibition law,  the  objection  is  immediately 
made  that  such  a  change  would  necessarily 
amount  to  a  nullification  of  the  Eighteenth 
Amendment.  And  so  it  would.  People 
therefore  feel  in  their  hearts  that  they  are  con- 
fronted practically  with  no  other  choice  but 
that  of  either  supinely  submitting  to  the  full 
rigor  of  Prohibition,  of  trying  to  procure  a 
law  which  nullifies  the  Constitution,  or  of  ex- 
pressing their  resentment  against  an  outrage 
on  the  first  principles  of  the  Constitution  by 
contemptuous  disregard  of  the  law.  It  is  a 
choice  of  evils;  and  it  is  not  surprising  that 
many  good  citizens  regard  the  last  of  the  three 
choices  as  the  best. 

How  far  this  contempt  and  this  disregard 
has  gone  is  but  very  imperfectly  indicated  by 
the  things  which  were  doubtless  in  President 
Angelas  mind,  and  which  are  in  the  minds  of 
most  persons  who  publicly  express  their  regret 
over  the  prevalence  of  law-breaking.  What 
they  are  thinking  about,  what  the  Anti-Saloon 
League  talks  about,  what  the  Prohibition  en- 


CREATING  LAW-BREAKERS  19 

forcement  officers  expend  their  energy  upon, 
is  the  sale  of  alcoholic  drinks  in  public  places 
and  by  bootleggers.  But  where  the  bootleg- 
ger and  the  restaurant-keeper  counts  his  thou- 
sands, home  brew  counts  its  tens  of  thousands. 
To  this  subject  there  is  a  remarkable  absence 
of  attention  on  the  part  of  the  Anti-Saloon 
League  and  of  the  Prohibition  enforcement 
service.  They  know  that  there  are  not  hun- 
dreds*  of  thousands  but  millions  of  people 
breaking  the  law  by  making  their  own  liquors, 
but  they  dare  not  speak  of  it.  They  dare  not 
go  even  so  far  as  to  make  it  universally  known 
that  the  making  of  home  brew  is  a  violation 
of  the  law.  To  this  day  a  very  considerable 
number  of  people  who  indulge  in  the  practice 
are  unaware  that  it  is  a  violation  of  the  law. 
And  the  reason  for  this  careful  and  persistent 
silence  is  only  too  plain.  To  make  conspicu- 
ous before  the  whole  American  people  the 
fact  that  the  law  is  being  steadily  and  com- 
placently violated  in  millions  of  decent  Amer- 
ican homes  would  bring  about  a  realization 
of    the    demoralizing    effect    of    Prohibition 


20       .WHAT  PROHIBITION  HAS  DONE 

which  its  sponsors,  fanatical  as  they  are,  very 
wisely  shrink  from  facing. 

How  long  this  demoralization  may  last  I 
shall  not  venture  to  predict.  But  it  will  not 
be  overcome  in  a  day;  and  it  will  not  be  over- 
come at  all  by  means  of  exhortations.  It  is 
possible  that  enforcement  will  gradually  be- 
come more  and  more  efficient,  and  that  the 
spirit  of  resistance  may  thus  gradually  be 
worn  out.  On  the  other  hand  it  is  also  pos- 
sible that  means  of  evading  the  law  may  be- 
come more  and  more  perfected  by  invention 
and  otherwise,  and  that  the  melancholy  and 
humiliating  spectacle  which  we  are  now  wit- 
nessing may  be  of  very  long  duration.  But 
in  any  case  it  has  already  lasted  long  enough 
to  do  incalculable  and  almost  ineradicable 
harm.  And  for  all  this  it  is  utterly  idle  to 
place  the  blame  on  those  qualities  of  human 
nature  which  have  led  to  the  violation  of  the 
law.  Of  those  qualities  some  are  reprehensi- 
ble and  some  are  not  only  blameless  but  com- 
mendable. The  great  guilt  is  not  that  of  the 
law-breakers  but  that  of  the  law-makers.    It  is 


CREATING  LAW-BREAKERS  21 

childish  to  imagine  that  every  law,  no  matter 
what  its  nature,  can  command  respect.  Noth- 
ing would  be  easier  than  to  imagine  laws  which 
a  very  considerable  number  of  perfectly  well- 
meaning  people  would  be  glad  to  have  en- 
acted, but  which  if  enacted  it  would  be  not 
only  the  right,  but  the  duty,  of  sound  citizens 
to  ignore.  I  do  not  say  that  the  Eighteenth 
Amendment  falls  into  this  category.  But  it 
comes  perilously  near  to  doing  so,  and  thou- 
sands of  the  best  American  citizens  think  that 
it  actually  does  do  so.  It  has  degraded  the 
Constitution  of  the  United  States.  It  has 
created  a  division  among  the  people  of  the 
United  States  comparable  only  to  that  which 
was  made  by  the  awful  issue  of  slavery  and 
secession.  That  issue  was  a  result  of  deep- 
seated  historical  causes  in  the  face  of  which 
the  wisdom  and  patriotism  of  three  genera- 
tions of  Americans  found  itself  powerless. 
This  new  cleavage  has  been  caused  by  an  act 
of  legislative  folly  unmatched  in  the  history 
of  free  institutions.  My  hope — a  distant  and 
yet  a  sincere  hope — is  that  the  American  peo- 


22       WHAT  PROHIBITION  HAS  DONE 

pie  may,  in  spite  of  all  difficulties,  be  awak- 
ened to  a  realization  of  that  folly  and  restore 
the  Constitution  to  its  traditional  dignity  by 
a  repeal,  sooner  or  later,  of  the  monstrous 
Amendment  by  which  it  has  been  defaced. 


CHAPTER  III 

DESTROYING  OUR  FEDERAL 
SYSTEM 

Thus  far  I  have  been  dealing  with  the 
wrong  which  the  Prohibition  Amendment 
commits  against  the  vital  principle  of  any 
national  Constitution,  the  principle  which 
alone  justifies  the  idea  of  a  Constitution — a 
body  of  organic  law  removed  from  the  opera- 
tion of  the  ordinary  processes  of  popular  rule 
and  representative  government.  But  refer- 
ence was  made  at  the  outset  to  a  wrong  of  a 
more  special,  yet  equally  profound,  character. 
The  distinctive  feature  of  our  system  of 
government  is  that  it  combines  a  high  degree 
of  power  and  independence  in  the  several 
States  with  a  high  degree  of  power  and 
authority  in  the  national  government.  Time 
was  when  the  dispute  naturally  arising 
in    such    a    Federal   Union,    concerning   the 

23 


24       WHAT  PROHIBITION  HAS  DONE 

line  of  division  between  these  two  kinds 
of  power,  turned  on  an  abstract  or  legal- 
istic question  of  State  sovereignty.  That  ab- 
stract question  was  decided,  once  for  all,  by 
the  arbitrament  of  arms  in  our  great  Civil 
War.  But  the  decision,  while  it  strengthened 
the  foundations  of  the  Federal  Union,  left 
unimpaired  the  individuality,  the  vitality,  the 
self-dependence  of  the  States  in  all  the  ordi- 
nary affairs  of  life.  It  continued  to  be  true, 
after  the  war  as  before,  that  each  State  had 
its  own  local  pride,  developed  its  own  special 
institutions,  regulated  the  conduct  of  life 
within  its  boundaries  according  to  its  own 
views  of  what  was  conducive  to  the  order,  the 
well-being,  the  contentment,  the  progress,  of 
its  own  people. 

It  has  been  the  belief  of  practically  all  in- 
telligent observers  of  our  national  life  that 
this  individuality  and  self-dependence  of  the 
States  has  been  a  cardinal  element  in  the  pro- 
motion of  our  national  welfare  and  in  the 
preservation  of  our  national  character.  In 
a  country  of  such  vast  extent  and  natural  vari- 


DESTROYING  OUR  FEDERAL  SYSTEM     25 

ety,  a  country  developing  with  unparalleled 
rapidity  and  confronted  with  constantly 
changing  conditions,  who  can  say  how  great 
would  have  been  the  loss  to  local  initiative 
and  civic  spirit,  how  grave  the  impairment 
of  national  concord  and  good  will,  if  all  the 
serious  concerns  of  the  American  people  had 
been  settled  for  them  by  a  central  government 
at  Washington?  In  that  admirable  little 
book,  'Tolitics  for  Young  Americans," 
Charles  Nordhofif  fifty  years  ago  expounded 
in  simple  language  the  principles  underlying 
our  system  of  government.  Coming  to  the 
subject  of  ''Decentralization,"  he  said: 

Experience  has  shown  that  this  device  [de- 
centralization] is  of  extreme  importance,  for  two 
reasons :  First,  it  is  a  powerful  and  the  best 
means  of  training  a  people  to  efficient  political 
action  and  the  art  of  self-government;  and,  sec- 
ond, it  presents  constant  and  important  barriers 
to  the  encroachment  of  rulers  upon  the  rights 
and  liberties  of  the  nation;  every  subdivision 
forming  a  stronghold  of  resistance  by  the  people 
against  unjust  or  wicked  rulers. 

Take  notice  that  any  system  of  government  is 


26       WHAT  PROHIBITION  HAS  DONE 

excellent  in  the  precise  degree  In  which  It  nat- 
urally trains  the  people  in  political  Independence, 
and  habituates  them  to  take  an  active  part  In 
governing  themselves.  Whatever  plan  of  gov- 
ernment does  this  is  good — no  matter  what  It 
may  be  called;  and  that  which  avoids  this  is  nec- 
essarily bad. 

What  Mr.  Nordhoff  thus  set  forth  has  been 
universally  acknow^ledged  as  the  cardinal 
merit  of  local  self-government;  and  in  addi- 
tion to  this  cardinal  merit  it  has  been  recog- 
nized by  all  competent  students  of  our  history 
that  our  system  of  self-governing  States  has 
proved  itself  of  inestimable  benefit  in  another 
way.  It  has  rendered  possible  the  trying  of 
important  experiments  in  social  and  govern- 
mental policy;  experiments  w^hich  it  would 
have  been  sometimes  dangerous,  and  still  more 
frequently  politically  impossible,  to  inaugu- 
rate on  a  national  scale.  When  these  experi- 
ments have  proved  successful,  State  after  State 
has  followed  the  example  set  by  one  or  a  few 
among  their  number ;  when  they  have  been  dis- 
appointing in  their  results,  the  rest  of  the 
Union   has   profited   by   the   warning.     But, 


DESTROYING  OUR  FEDERAL  SYSTEM      27 

highly  important  as  is  this  aspect  of  State  in- 
dependence, the  most  essential  benefits  of  it 
are  the  training  in  self-government  which  is 
emphasized  in  the  above  quotation  from  Mr. 
Nordhofif,  and  the  adaptation  of  laws  to  the 
particular  needs  and  the  particular  character 
of  the  people  of  the  various  States. 

That  modern  conditions  have  inevitably  led 
to  a  vast  enlargement  of  the  powers  of  the 
central  government,  no  thinking  person  can 
deny.  It  would  be  folly  to  attempt  to  stick 
to  the  exact  division  of  State  functions  as 
against  national  which  was  natural  when  the 
Union  was  first  formed.  The  railroad,  the 
telegraph,  and  the  telephone,  the  immense  de- 
velopment of  industrial,  commercial,  and 
financial  organization,  the  growth  of  inter- 
woven interests  of  a  thousand  kinds,  have 
brought  the  people  of  California  and  New 
York,  of  Michigan  and  Texas,  into  closer  re- 
lations than  were  common  between  those  of 
Massachusetts  and  Virginia  in  the  days  of 
Washington  and  John  Adams.  In  so  far  as 
the  process  of  centralization  has  been  dictated 


28       WHAT  PROHIBITION  HAS  DONE 

by  the  clear  necessities  of  the  times,  it  would 
be  idle  to  obstruct  it  or  to  cry  out  against  it. 
But,  so  far  from  this  being  an  argument 
against  the  preservation  of  the  essentials  of 
local  self-government,  it  is  the  strongest  pos- 
sible argument  in  favor  of  that  preservation. 
With  the  progress  of  science,  invention,  and 
business  organization,  the  power  and  prestige 
of  the  central  government  are  bound  to  grow, 
the  power  and  prestige  of  the  State  govern- 
ments are  bound  to  decline,  under  the  pressure 
of  economic  necessity  and  social  convenience; 
all  the  more,  then,  does  it  behoove  us  to  sus- 
tain those  essentials  of  State  authority  which 
are  not  comprised  within  the  domain  of  those 
overmastering  economic  forces.  If  we  do  not 
hold  the  line  where  the  line  can  be  held,  we 
give  up  the  cause  altogether;  and  it  will  be 
only  a  question  of  time  when  we  shall  have 
drifted  into  complete  subjection  to  a  central- 
ized government,  and  State  boundaries  will 
have  no  more  serious  significance  than  county 
boundaries  have  now. 

But  if  there 'is  one  thingjn  the  wide  world 


DESTROYING  OUR  FEDERAL  SYSTEM     29 

the  control  of  which  naturally  and  preemi- 
nently belongs  to  the  individual  State  and  not 
to  the  central  government  at  Washington,  that 
thing  is  the  personal  conduct  and  habits  of  the 
people  of  the  State.  If  it  is  right  and  proper 
that  the  people  of  New  York  or  Illinois  or 
Maryland  shall  be  subjected  to  a  national  law 
which  declares  what  they  may  or  may  not  eat 
or  drink — a  law  which  they  cannot  themselves 
alter,  no  matter  how  strongly  they  may  desire 
it — then  there  is  no  act  of  centralization  what- 
soever which  can  be  justly  objected  to  as 
an  act  of  centralization.  The  Prohibition 
Amendment  is  not  merely  an  impairment  of 
the  principle  of  self-government  of  the  States; 
it  constitutes  an  absolute  abandonment  of  that 
principle.  This  does  not  mean,  of  course,  an 
immediate  abandonment  of  the  practice  of 
State  self-government;  established  institutions 
have  a  tenacious  life,  and  moreover  there  are 
a  thousand  practical  advantages  in  State  self- 
government  which  nobody  will  think  of  giv- 
ing up.  But  the  principle,  I  repeat,  is  aban- 
doned altogether  if  we  accept  the  Eighteenth 


30       WHAT  PROHIBITION  HAS  DONE 

Amendment  as  right  and  proper;  and  if  any- 
body imagines  that  the  abandonment  of  the 
principle  is  of  no  practical  consequence,  he  is 
woefully  deluded.  So  long  as  the  principle 
is  held  in  esteem,  it  is  always  possible  to  make 
a  stout  fight  against  any  particular  encroach- 
ment upon  State  authority;  any  proposed  en- 
croachment must  prove  its  claim  to  acceptance 
not  only  as  a  practical  desideratum  but  as  not 
too  flagrant  an  invasion  of  State  prerogatives. 
But  with  the  Eighteenth  Amendment  ac- 
cepted as  a  proper  part  of  our  system,  it  will 
be  impossible  to  object  to  any  invasion  as  more 
flagrant  than  that  to  which  the  nation  has  al- 
ready given  its  approval. 

A  striking  illustration  of  this  has,  curiously 
enough,  been  furnished  in  the  brief  time  that 
has  passed  since  the  adoption  of  the  Eight- 
eenth Amendment.  Southern  Senators  and 
Representatives  and  Legislaturemen  who,  for- 
getting all  about  their  cherished  doctrine  of 
State  rights,  had  fallen  over  themselves  in 
their  eagerness  to  fasten  the  Eighteenth 
Amendment  upon  the  country,  suddenly  dis- 


DESTROYING  OUR  FEDERAL  SYSTEM     31 

covered  that  they  were  deeply  devoted  to  that 
doctrine  when  the  Nineteenth  Amendment 
came  up  for  consideration.  But  nobody 
would  listen  to  them.  They  professed — and 
doubtless  some  of  them  sincerely  professed — 
to  find  an  essential  difference  between  putting 
Woman  Suffrage  into  the  Constitution  and 
putting  Prohibition  into  the  Constitution. 
The  determination  of  the  right  of  suffrage 
was,  they  said,  the  most  fundamental  attribute 
of  a  sovereign  State;  national  Prohibition  did 
not  strike  at  the  heart  of  State  sovereignty  as 
did  national  regulation  of  the  suffrage.  But 
the  abstract  question  of  sovereignty  has  had 
little  interest  for  the  nation  since  the  Civil 
War;  and  if  we  waive  that  abstract  question, 
the  Prohibition  Amendment  was  an  infinitely 
more  vital  thrust  at  the  principle  of  State  self- 
government.  The  Woman  Suffrage  Amend- 
ment was  the  assertion  of  a  fundamental 
principle  of  government,  and  if  it  was  an 
abridgment  of  sovereignty  it  was  an  abridg- 
ment of  the  same  character  as  those  embodied 
in  the  Constitution  from  the  beginning;  the 


32       WHAT  PROHIBITION  HAS  DONE 

Prohibition  Amendment  brought  the  Federal 
Government  into  control  of  precisely  those 
intimate  concerns  of  daily  life  which,  above 
all  else,  had  theretofore  been  left  untouched 
by  the  central  power,  and  subject  to  the  inde- 
pendent jurisdiction  of  each  individual  State. 
The  South  had  eagerly  swallowed  a  camel, 
and  when  it  asked  the  country  to  strain  at  a 
gnat  it  found  nobody  to  listen. 

Our  public  men,  and  our  leaders  of  opinion, 
frequently  and  earnestly  express  their  concern 
over  the  decline  of  importance  in  our  State 
governments,  the  lessened  vigor  of  the  State 
spirit.  The  sentiment  is  not  peculiar  to  any 
party  or  to  any  section;  it  is  expressed  with 
equal  emphasis  and  with  equal  frequency  by 
leading  Republicans  and  leading  Democrats, 
by  Northerners  and  Southerners.  All  feel 
alike  that  with  the  decay  of  State  spirit  a 
virtue  will  go  out  of  our  national  spirit — that 
a  centralized  America  will  be  a  devitalized 
America.  But  when  they  discuss  the  subject, 
they  are  in  the  habit  of  referring  chiefly  to 
defects  in  administration;  to  neglect  of  duty 


DESTROYING  OUR  FEDERAL  SYSTEM     33 

by  the  average  citizen  or  perhaps  by  those  in 
high  places  in  business  or  the  professions;  to 
want  of  intelligence  in  the  Legislature,  etc. 
And  for  all  this  there  is  much  reason;  yet  all 
this  we  have  had  always  with  us,  and  it  is  not 
always  that  we  have  had  with  us  this  sense  of 
the  decline  of  State  spirit.  For  that  decline 
the  chief  cause  is  the  gradual,  yet  steady  and 
rapid,  extension  of  national  power  and  lower- 
ing of  the  comparative  importance  of  the 
functions  of  the  State.  However,  the  func- 
tions that  still  remain  to  the  State — and  its 
subdivisions,  the  municipalities  and  counties 
— are  still  of  enormous  importance;  and,  with 
the  growth  of  public-welfare  activities  which 
are  ramifying  in  so  many  directions,  that  im- 
portance may  be  far  greater  in  the  future. 
But  what  is  to  become  of  it  if  we  are  ready  to 
surrender  to  the  central  government  the  con- 
trol of  our  most  intimate  concerns?  And  what 
concern  can  be  so  intimate  as  that  of  the  con- 
duct of  the  individual  citizen  in  the  pursuit  of 
his  daily  life?  How  can  the  idea  of  the  State 
as  an  object  of  pride  or  as  a  source  of  author- 


34       WHAT  PROHIBITION  HAS  DONE 

ity  flourish  when  the  most  elementary  of  its 
functions  is  supinely  abandoned  to  the  custody 
of  a  higher  and  a  stronger  power?  The  Pro- 
hibition Amendment  has  done  more  to  sap  the 
vitality  of  our  State  system  than  could  be  done 
by  a  hundred  years  of  misrule  at  Albany  or 
Harrisburg  or  Springfield.  The  effects  of 
that  misrule  are  more  directly  apparent,  but 
they  leave  the  State  spirit  untouched  in  its 
vital  parts.  The  Prohibition  Amendment 
strikes  at  the  root  of  that  spirit,  and  its  evil 
precedent,  if  unreversed,  will  steadily  cut  off 
the  source  from  which  that  spirit  derives  its 
life. 


CHAPTER  IV 

HOW  THE  AMENDMENT  WAS  PUT 
THROUGH 

There  has  been  a  vast  amount  of  controversy 
over  the  question  whether  a  majority  of  the 
American  people  favored  the  adoption  of  the 
Eighteenth  Amendment.  There  is  no  possi- 
ble way  to  settle  that  question.  Even  future 
votes,  if  any  can  be  had  that  may  be  looked 
upon  as  referendum  votes,  cannot  settle  it, 
whichever  way  they  may  turn  out.  If  evi- 
dence should  come  to  hand  which  indicates 
that  a  majority  of  the  American  people  favor 
the  retention  of  the  Amendment  now  that  it 
is  an  accomplished  fact,  this  will  not  prove 
that  they  favored  its  adoption  in  the  first 
place;  it  may  be  that  they  wish  to  give  it  a 
fuller  trial,  or  it  may  be  that  they  do  not  wish 
to  go  through  the  upheaval  and  disturbance 
of  a  fresh  agitation  of  the  question,  or  it  may 

35 


36       WHAT  PROHIBITION  HAS  DONE 

be  some  other  reason  quite  different  from  what 
was  in  the  situation  four  years  ago.  On  the 
other  hand,  if  the  referendum  should  seem 
adverse,  this  might  be  due  to  disgust  at  the 
lawlessness  that  has  developed  in  connection 
with  the  Prohibition  Amendment,  or  to  a  real- 
ization of  the  vast  amount  of  discontent  it  has 
aroused,  or  to  something  else  that  was  not  in 
the  minds  of  the  majority  when  the  Amend- 
ment was  put  through. 

But  really  the  question  is  of  very  little  im- 
portance. From  the  standpoint  of  funda- 
mental political  doctrine,  it  makes  no  differ- 
ence whether  40  million,  or  50  million,  or  60 
million  people  out  of  a  hundred  million  de- 
sired to  put  into  the  Constitution  a  provision 
which  is  an  offense  against  the  underlying  idea 
of  any  Constitution,  an  injury  to  the  American 
Federal  system,  an  outrage  upon  the  first  prin- 
ciples both  of  law  and  of  liberty.  And  if, 
instead  of  viewing  the  matter  from  the  stand- 
point of  fundamental  political  doctrine,  we 
look  upon  it  as  a  question  of  Constitutional 
procedure,  it  is  again — though  for  a  different 


HOW  AMENDMENT  WENT  THROUGH     37 

reason — a  matter  of  little  consequence 
whether  a  count  of  noses  would  have  favored 
the  adoption  of  the  Amendment  or  not.  The 
Constitution  provides  a  definite  method  for 
its  own  amendment,  and  this  method  was 
strictly  carried  out — the  Amendment  received 
the  approval  of  the  requisite  number  of  Rep- 
resentatives, Senators  and  State  Legislatures; 
from  the  standpoint  of  Constitutional  proce- 
dure the  question  of  popular  majorities  has 
nothing  to  do  with  the  case. 

But  from  every  standpoint  the  way  in  which 
the  Eighteenth  Amendment  was  actually  put 
through  Congress  and  the  Legislatures  has  a 
great  deal  to  do  with  the  case.  Prohibition- 
ists constantly  point  to  the  big  majority  in 
Congress,  and  the  promptness  and  almost  un- 
animity of  the  approval  by  the  Legislatures, 
as  proof  of  an  overwhelming  preponderance 
of  public  sentiment  in  favor  of  the  Amend- 
ment. It  is  proof  of  no  such  thing.  To  be- 
gin with,  nothing  is  more  notorious  than  the 
fact  that  a  large  proportion  of  the  members 
of  Congress  and  State  Legislatures  who  voted 


38       WHAT  PROHIBITION  HAS  DONE 

for  the  Prohibition  Amendment  were  not 
themselves  in  favor  of  it.  Many  of  them 
openly  declared  that  they  were  voting  not  ac- 
cording to  their  own  judgment  but  in  defer- 
ence to  the  desire  of  their  constituents.  But 
there  is  not  the  slightest  reason  to  believe  that 
one  out  of  twenty  of  those  gentlemen  made 
any  effort  to  ascertain  the  desire  of  a  majority 
of  their  constituents ;  nor,  for  that  matter,  that 
they  would  have  followed  that  desire  if  they 
had  known  what  it  was.  What  they  were 
really  concerned  about  was  to  get  the  support, 
or  avoid  the  enmity,  of  those  who  held,  or 
were  supposed  to  hold,  the  balance  of  power. 
For  that  purpose  a  determined  and  highly 
organized  body  of  moderate  dimensions  may 
outweigh  a  body  ten  times  as  numerous  and 
ten  times  as  representative  of  the  community. 
The  Anti-Saloon  League  was  the  power  of 
which  Congressmen  and  Legislaturemen  alike 
stood  in  fear.  Never  in  our  political  history 
has  there  been  such  an  example  of  consum- 
mately organized,  astutely  managed,  and  un- 
remittingly   maintained     intimidation ;     and 


HOW  AMENDMENT  WENT  THROUGH      39 

accordingly  never  in  our  history  has  a  measure 
of  such  revolutionary  character  and  of  such 
profound  importance  as  the  Eighteenth 
Amendment  been  put  through  with  anything 
like  such  smoothness  and  celerity. 

The  intimidation  exercised  by  the  Anti- 
Saloon  League  w^as  potent  in  a  degree  far  be- 
yond the  numerical  strength  of  the  League 
and  its  adherents,  not  only  because  of  the  ef- 
fective and  systematic  use  of  its  black-listing 
methods,  but  also  for  another  reason.  Weak- 
kneed  Congressmen  and  Legislaturemen  suc- 
cumbed not  only  to  fear  of  the  ballots  which 
the  League  controlled  but  also  to  fear  of 
another  kind.  A  weapon  not  less  powerful 
than  political  intimidation  was  the  moral  in- 
timidation which  the  Prohibition  propaganda 
had  constantly  at  command.  That  such  in- 
timidation should  be  resorted  to  by  a  body 
pushing  what  it  regards  as  a  magnificent 
reform  is  not  surprising;  the  pity  is  that  so 
few  people  have  the  moral  courage  to  beat 
back  an  attack  of  this  kind.  Throughout  the 
entire  agitation,  it  was  the  invariable  habit 


40       WHAT  PROHIBITION  HAS  DONE 

of  Prohibition  advocates  to  stigmatize  the 
anti-Prohibition  forces  as  representing  noth- 
ing but  the  'liquor  interests."  The  fight  was 
presented  in  the  light  of  a  struggle  between 
those  who  wished  to  coin  money  out  of  the 
degradation  of  their  fellow-creatures  and 
those  who  sought  to  save  mankind  from  per- 
dition. That  the  millions  of  people  who  en- 
joyed drinking,  to  whom  it  was  a  cherished 
source  of  refreshment,  recuperation,  and 
sociability,  had  any  stake  in  the  matter,  the 
agitators  never  for  a  moment  acknowledged; 
if  a  man  stood  out  against  Prohibition  he  was 
not  the  champion  of  the  millions  who  enjoyed 
drink,  but  the  servant  of  the  interests  who  sold 
drink.  This  preposterous  fiction  was  allowed 
to  pass  current  with  but  little  challenge;  and 
many  a  public  man  who  might  have  stood  out 
against  the  Anti-Saloon  League's  power  over 
the  ballot-box  cowered  at  the  thought  of  the 
moral  reprobation  which  a  courageous  stand 
against  Prohibition  might  bring  down  upon 
him. 

Thus  the  swiftness  with  which  the  Prohi- 


HOW  AMENDMENT  WENT  THROUGH     41 

bition  Amendment  was  adopted  by  Congress 
and  by  State  Legislatures,  and  the  overwhelm- 
ing majorities  which  it  commanded  in  those 
bodies,  is  no  proof  either  of  sincere  conviction 
on  the  part  of  the  lawmakers  or  of  their  belief 
that  they  were  expressing  the  genuine  will  of 
their  constituents.  As  for  individual  con- 
viction, the  personal  conduct  of  a  large  pro- 
portion of  the  lawmakers  who  voted  for  Prohi- 
bition is  in  notorious  conflict  with  their  votes; 
and  as  for  the  other  question,  it  has  happened 
in  State  after  State  that  the  Legislature  was 
almost  unanimous  for  Prohibition  when  the 
people  of  the  State  had  quite  recently  shown 
by  their  vote  that  they  were  either  distinctly 
against  it  or  almost  evenly  divided. 

Of  this  kind  of  proceeding,  Maryland  pre- 
sented an  example  so  flagrant  as  to  deserve 
special  mention.  Although  popular  votes  in 
the  State  had,  within  quite  a  short  time,  re- 
corded strong  anti-Prohibition  majorities,  the 
Legislature  rushed  its  ratification  of  the  Eight- 
eenth Amendment  through  in  the  very  first 
days  of  its  session;  and  this  in  face  of  the  fact 


42       WHAT  PROHIBITION  HAS  DONE 

that  Maryland  has  always  held  strongly  by 
State  rights  and  cherished  its  State  individual- 
ity, and  that  the  leading  newspapers  of  the 
State  and  many  of  its  foremost  citizens  came 
out  courageously  and  energetically  against  the 
Amendment.  In  these  circumstances,  noth- 
ing but  a  mean  subserviency  to  political 
intimidation  can  possibly  account  for  the  in- 
decent haste  with  which  the  ratification  was 
pushed  through.  It  is  interesting  to  note  a 
subsequent  episode  which  casts  a  further  in- 
teresting light  on  the  matter,  and  tends  to 
show  that  there  are  limits  beyond  which  the 
whip-and-spur  rule  of  the  Anti-Saloon  League 
cannot  go.  In  the  session  of  the  present  year, 
the  Anti-Saloon  League  tried  to  get  a  State 
Prohibition  enforcement  bill  passed.  Al- 
though there  was  a  great  public  protest,  the 
bill  was  put  through  the  lower  House  of  the 
Legislature;  but  in  the  Senate  it  encountered 
resistance  of  an  effective  kind.  The  Senate 
did  not  reject  the  bill;  but,  in  spite  of  bitter 
opposition  by  the  Anti-Saloon  League,  it  at- 
tached to  the  bill  a  referendum  clause.     With 


HOW  AMENDMENT  WENT  THROUGH      43 

that  clause  attached,  the  Anti-Saloon  League 
ceased  to  desire  the  passage  of  the  bill,  and 
allowed  it  to  be  killed  on  its  return  to  the 
lower  House  of  the  Legislature.  Is  this  not 
a  fine  exhibition  of  the  nature  of  the  League's 
hold  on  legislation?  And  is  there  not  abun- 
dant evidence  that  the  whole  of  this  Maryland 
story  is  typical  of  what  has  been  going  on 
throughout  the  country? 

Charges  are  made  that  the  Anti-Saloon 
League  has  expended  vast  sums  of  money  in 
its  campaigns;  money  largely  supplied,  it  is 
often  alleged,  by  one  of  the  world's  richest 
men,  running  into  the  tens  of  millions  or 
higher.  I  do  not  believe  that  these  charges 
are  true.  More  weight  is  to  be  attached  to 
another  factor  in  the  case — the  adoption  of 
the  Amendment  by  Congress  while  we  were  in 
the  midst  of  the  excitement  and  exaltation  of 
the  war,  and  two  million  of  our  young  men 
were  overseas.  Unquestionably,  advantage  was 
taken  of  this  situation;  there  can  be  little 
doubt  that  the  Eighteenth  Amendment  would 
have  had  much  harder  sledding  at  a  normal 


44       WHAT  PROHIBITION  HAS  DONE 

time.  And  it  is  right,  accordingly,  to  insist 
that  the  Amendment  was  not  subjected  to  the 
kind  of  discussion,  nor  put  through  the  kind  of 
test  of  national  approval,  which  ought  to  pre- 
cede any  such  permanent  and  radical  change 
in  our  Constitutional  organization.  This  is 
especially  true  because  National  Prohibition 
was  not  even  remotely  an  issue  in  the  preced- 
ing election,  nor  in  any  earlier  one.  All  these 
things  must  weigh  in  our  judgment  of  the 
moral  weight  to  be  attached  to  the  adoption 
of  the  Eighteenth  Amendment;  but  there  is 
another  aspect  of  that  adoption  which  is  more 
important. 

The  gravest  reproach  which  attaches  to  that 
unfortunate  act,  the  one  which  causes  deepest 
concern  among  thinking  citizens,  does  not  re- 
late to  any  incidental  feature  of  the  Prohibi- 
tion manoeuvres.  The  fundamental  trouble 
lay  in  a  deplorable  absence  of  any  general 
understanding  of  the  seriousness  of  making  a 
vital  change  in  the  Constitution — incompar- 
ably the  most  vital  to  which  it  has  ever  been 
subjected — and  of  the  solemn  responsibility 


HOW  AMENDMENT  WENT  THROUGH     45 

of  those  upon  whom  rested  the  decision  to 
make  or  not  to  make  that  change.  Even  in 
newspapers  in  which  one  would  expect,  as  a 
matter  of  course,  that  this  aspect  of  the  ques- 
tion would  be  earnestly  impressed  upon  their 
readers,  it  was,  as  a  rule,  passed  over  without 
so  much  as  a  mention.  And  this  is  not  all. 
One  of  the  shrewdest  and  most  successful  of 
the  devices  which  the  League  and  its  support- 
ers constantly  made  use  of  was  to  represent 
the  function  of  Congress  as  being  merely  that 
of  submitting  the  question  to  the  State  Legis- 
latures; as  though  the  passage  of  the  Amend- 
ment by  a  two-thirds  vote  of  Congress  did  not 
necessarily  imply  approval,  but  only  a  will- 
ingness to  let  the  sentiment  of  the  several 
States  decide.  Of  course,  such  a  view  is  pre- 
posterous; of  course,  if  such  were  the  purpose 
of  the  Constitutional  procedure  there  would 
be  no  requirement  of  a  two-thirds  vote.*  But 
many  members  of  Congress  were  glad  enough 

*This  should  be  self-evident;  but  if  there  were  any  room 
for  doubt,  it  would  be  removed  by  a  reference  to  the  language 
of  Article  V  of  the  Constitution: 

"The  Congress,  whenever  two-thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Constitu- 


46       WHAT  PROHIBITION  HAS  DONE 

to  take  refuge  behind  this  view  of  their  duty, 
absurd  though  it  was;  and  no  one  can  say  how 
large  a  part  it  played  in  securing  the  requisite 
two-thirds  of  House  and  Senate.  Yet  from 
the  moment  the  Amendment  was  thus  adopted 
by  Congress,  nothing  more  was  heard  of  this 
notion  of  that  body  having  performed  the 
merely  ministerial  act  of  passing  the  question 
on  to  the  Legislatures.  On  the  contrary,  the 
two-thirds  vote  (and  more)  was  pointed  to  as 
conclusive  evidence  of  the  overwhelming  sup- 
port of  the  Amendment  by  the  nation;  the 
Legislatures  were  expected  to  get  with  alac- 
rity into  the  band-wagon  into  which  Congress 
had  so  eagerly  climbed.  Evidently,  it  would 
have  been  far  more  difficult  to  get  the  Eight- 
eenth Amendment  into  the  Constitution  if  the 
two-thirds  vote  of  Congress  had  been  the  sole 
requirement  for  its  adoption.  Congressmen 
disposed  to  take  their  responsibility  lightly, 

tion"  which  shall  be  valid  "when  ratified  by  the  Legislatures 
of  three-fourths  of  the  States."  ^ 

Thus  Congress  does  not  submit  an  amendment,  but  proposes 
it;  and  it  does  this  only  when  two-thirds  of  both  Houses  deem 
it  necessary.  The  primary  act  of  judgment  is  performed  by 
Congress ;  what  remains  for  the  Legislatures  is  to  ratify  or  not 
to  ratify  that  act. 


HOW  AMENDMENT  WENT  THROUGH     47 

and  yet  not  altogether  without  conscience, 
voted  with  the  feeling  that  their  act  was  not 
final,  when  they  might  otherwise  have  shrunk 
from  doing  what  their  judgment  told  them 
was  wrong;  and,  the  thing  once  through  Con- 
gress, Legislatures  hastened  to  ratify  in  the 
feeling  that  ratification  by  the  requisite  num- 
ber of  Legislatures  was  manifestly  a  foregone 
conclusion.  Thus  at  no  stage  of  the  game  was 
there  given  to  this  tremendous  Constitutional 
departure  anything  even  distantly  approach- 
ing the  kind  of  consideration  that  such  a  step 
demands.  The  country  was  jockeyed  and 
stampeded  into  the  folly  it  has  committed; 
and  who  can  say  what  may  be  the  next  folly 
into  which  we  shall  fall,  if  we  do  not  awaken 
to  a  truer  sense  of  the  duty  that  rests  upon 
every  member  of  a  law-making  body — to  de- 
cide these  grave  questions  in  accordance  with 
the  dictates  of  his  own  honest  and  intelligent 
judgment? 


CHAPTER  y 
THE  LAWMAKERS  AND  THE  LAW 

Well-meaning   exhorters,   shocked    at   the 
spectacle  of  millions  of  perfectly  decent  and 
law-abiding  Americans  showing  an  utter  dis- 
regard of  the  Prohibition  law,  are  prone  to 
^v^      insist  that  to  violate  this  law,  or  to  abet  its 
violation,  is  just  as  immoral  as  to  violate  any- 
other  criminal  law.     The  thing  is  on  the  stat- 
/       ute-books — nay,  in  the  very  Constitution  itself 
(         — and  to  offend  against  it,  they  say,  is  as  much 
\        a  crime  as  to  commit  larceny,  arson  or  mur- 
der.    But  they  may  repeat  this  doctrine  until 
Doomsday,  and  make  little  impression  upon 
persons   who    exercise    their   common   sense. 
^"^^-.Jlie  law  that  makes  larceny,  arson  or  murder 
a  crime  merely  registers,  and  emphasizes,  and 
makes  effective  through  the  power  of  the  Gov- 
ernment, the  dictates  of  the  moral  sense  of 
practically  all  mankind;  and  if,  in  the  case 

48 


THE  LAW  MAKERS  AND  THE  LAW  49 

of  some  kindred  crimes,  it  goes  beyond  those 
dictates  for  special  reasons,  the  extension  is 
only  such  as  is  called  for  by  the  circumstances. 
However  desirable  it  may  be  that  the  sudden 
transformation  of  an  innocent  act  into  a  crime 
by  mere  governmental  edict  should  carry  with 
it  the  same  degree  of  respect  as  is  paid  to  laws 
against  crimes  which  all  normal  men  hold  in 
abhorrence,  it  is  idle  to  expect  any  such  thing; 
and  in  a  case  where  the  edict  violates  princi- 
ples which  almost  all  of  us  only  a  short  time 
ago  held  to  be  almost  sacred,  the  expectation 
is  worse  than  merely  idle.  A  nation  which 
could  instantly  get  itself  into  the  frame  of 
mind  necessary  for  such  supine  submission 
would  be  a  nation  fit  for  servitude,  not  free- 
dom. 

But  in  the  case  of  the  Prohibition  Amend- 
ment, and  of  the  Volstead  act  for  its  enforce- 
ment, there  enters  another  element  which  must 
inevitably  and  most  powerfully  affect  the  feel- 
ings of  men  toward  the  law.  Everybody 
knows  that  the  law  is  violated,  in  spirit  if  not 
in  letter,  by  a  large  proportion  of  the  very 


50       WHAT  PROHIBITION  HAS  DONE 

men  who  imposed  it  upon  the  country. 
Members  of  Congress  and  of  the  State  Legis- 
latures— those  that  voted  for  Prohibition,  as 
well  as  those  that  voted  against  it — have  their 
private  stocks  of  liquor  like  other  people;  nor 
is  there  any  reason  to  believe  that  many  of 
them  are  more  scrupulous  than  other  people 
in  augmenting  their  supply  from  outside 
sources.  One  of  the  means  resorted  to  by  the 
Anti-Saloon  League  in  pushing  through  the 
Amendment  was  the  particular  care  they  took 
to  make  its  passage  involve  little  sacrifice  of 
personal  indulgence  on  the  part  of  those 
who  were  wealthy  enough,  or  clever  enough, 
to  provide  for  the  satisfaction  of  their  own 
desires  in  the  matter  of  drink,  at  least  for  many 
years  to  come.  The  League  knew  perfectly 
that  in  some  Prohibition  States  the  possession 
of  liquor  was  forbidden  as  well  as  its  manu- 
facture, transportation  and  sale ;  but  the  Anti- 
Saloon  League  would  never  have  dared  to 
include  in  the  Amendment  a  ban  upon  posses- 
sion. Congressmen  who  voted  for  it  knew 
that    not    only    they    themselves,    but    their 


THE  LAW  MAKERS  AND  THE  LAW  61 

wealthy  and  influential  constituents,  would  be 
in  a  position  to  provide  in  very  large  measure 
for  their  own  future  indulgences;  and  it  may 
be  set  down  as  certain  that  had  this  not  been 
the  case,  opposition  to  the  Amendment  would 
have  been  vastly  more  effective  than  it  was. 

In  order  that  a  person  should  entertain  a 
genuine  feeling  that  the  Prohibition  Amend- 
ment is  entitled  to  the  same  kind  of  respect 
as  the  general  body  of  criminal  law,  it  is  nec- 
essary— even  if  he  waives  all  those  questions 
of  Constitutional  principle  which  have  been 
dwelt  upon  in  previous  chapters — that  he 
should  regard  drinking  as  a  crime.  And  this 
is  indeed  the  express  belief  of  many  upholders 
of  the  Amendment — a  foolish  belief,  in  my 
judgment,  but  certainly  a  sincere  one.  I  have 
before  me  a  letter — typical  of  many — pub- 
lished in  one  of  our  leading  newspapers  and 
written  evidently  by  a  man  of  education  as  well 
as  sincerity.  He  speaks  bitterly  of  the  pro- 
posal to  permit  ^'light  wines  and  beer,"  and 
asks  whether  any  one  would  propose  to  per- 
mit light  burglary  or  light  arson.     That  man 


52       WHAT  PROHIBITION  HAS  DONE 

evidently  regards  indulgence  in  any  intoxicat- 
ing liquor  as  a  crime,  and  he  looks  upon  the 
law  as  a  prohibition  of  that  crime.  And  he 
is  essentially  right,  if  the  law  is  right.  For 
while  the  law  does  not  in  its  express  terms 
make  drinking  a  crime,  its  intention — and  its 
practical  effect  so  far  as  regards  the  great 
mass  of  the  people — is  precisely  that.  The 
people  President  Angell  had  in  mind  when  he 
implored  the  young  Yale  graduates  not  to  be 
like  them,  are  not  makers  or  sellers  of  liquor, 
but  drinkers  of  it.  They  are  not  moonshiners 
or  smugglers  or  bootleggers;  they  are  the  peo- 
ple upon  whose  patronage  or  connivance  the 
moonshiners  and  smugglers  and  bootleggers 
depend  for  their  business.  And  everybody 
knows  that,  in  their  private  capacity,  Senators 
and  Representatives  and  Legislaturemen  are 
precisely  like  their  fellow-citizens  in  this  mat- 
ter. They  may  possibly  be  somewhat  more 
careful  about  the  letter  of  the  law;  they  are 
certainly  just  as  regardless  of  its  spirit.  With 
the  exception  of  a  comparatively  small  num- 
ber   of    genuine    Prohibitionists — men    who 


THE  LAW  MAKERS  AND'  THE  LAW     53 

were  for  Prohibition  before  the  Anti-Saloon 
League  started  its  campaign — they  would 
laugh  at  the  question  whether  they  regard 
drinking  as  a  crime.  And  they  act  accord- 
ingly. 

What  degree  of  moral  authority  can  the 
law  be  expected  to  have  in  these  circum- 
stances? Upon  the  mind  of  a  man  intensely 
convinced  that  the  law  is  an  outrage,  how 
much  impression  can  be  produced  by  the  mere 
fact  that  it  w^as  passed  by  Congress  and  the 
Legislatures,  when  the  real  attitude  of  the 
members  of  those  bodies  is  such  as  it  is  seen 
to  be  in  their  private  conduct?  How  much  of 
a  moral  sanction  would  be  given  to  a  law 
against  larceny  if  a  large  proportion  of  the 
men  who  enacted  the  law  were  themselves  re- 
ceivers of  stolen  goods?  Or  a  law  against 
forgery  if  the  legislators  were  in  the  frequent 
habit  of  passing  forged  checks?  It  happens 
that  the  receiving  of  stolen  goods  or  the  pass- 
ing of  forged  checks  is  a  crime  under  the  law, 
as  well  as  the  stealing  or  the  forgery  itself; 
and  that  the  Prohibition  law  does  not  make 


54       WHx\T  PROHIBITION  HAS  DONE 

the  drinking  or  even  the  buying  of  liquor,  but 
only  the  making  or  selling  of  it,  a  crime;  but 
what  a  miserable  refuge  this  is  for  a  man  who 
professes  to  believe  that  the  abolition  of  in- 
toxicating liquor  is  so  supreme  a  public  neces- 
sity as  to  demand  the  remaking  of  the  Con- 
stitution of  the  United  States  for  the  purpose! 
Not  the  least  of  the  causes  of  public  disrespect 
for  the  Prohibition  law  is  the  notorious  insin- 
cerity of  the  makers  of  the  law,  and  their 
flagrant  disrespect  for  their  own  creation. 


CHAPTER  VI 

THE    LAW   ENFORCERS   AND   THE 
LAW 

Day  after  day,  month  after  montH,  a  distress- 
ing, a  disgusting  spectacle  is  presented  to  the 
American  people  in  connection  with  the  en- 
forcement of  the  national  Prohibition  law. 
No  day  passes  without  newspaper  headlines 
which  ''feature"  some  phase  of  the  contest  go- 
ing on  between  the  Government  on  the  one 
hand  and  millions  of  citizens  on  the  other; 
citizens  Who  belong  not  to  the  criminal  or 
semi-criminal  classes,  nor  yet  to  the  ranks  of 
those  who  are  indifferent  or  disloyal  to  the 
principles  of  our  institutions,  but  who  are  typ- 
ical Americans,  decent,  industrious,  patriotic, 
law-abiding.  It  is  true  that  the  individuals 
whom  the  Government  hunts  down  by  its 
spies,  its  arrests,  its  prosecutions,  are  men  who 
make  a  business  of  breaking  the  Prohibition 

55 


56       WHAT  PROHIBITION  HAS  DONE 

law,  and  most  of  whom  would  probably  just 
as  readily  break  other  laws  if  money  was  to 
be  made  by  it.  But  none  the  less  the  real 
struggle  is  not  with  the  thousands  who  furnish 
liquor  but  with  the  hundreds  of  th6usands7~of 
mill  ions,  "to  whom  they  purvey^t.  Every 
time  we  read  of  a  spectacular  raid  or  a  sensa- 
tional capture,  we  are  really  reading  of  a  war 
that  is  being  waged  by  a  vast  multitude  of 
good  normal  American  citizens  against  the 
enforcement  of  a  law  which  they  regard  as  a 
gross  invasion  of  their  rights  and  a  violation 
of  the  first  principles  of  American  govern- 
ment The  state  of  things  thus  arising  was 
admirably  and  compactly  characterized  by 
Justice  Clarke,  of  the  United  States  Supreme 
Court,  in  a  single  sentence  of  his  recent  ad- 
dress before  the  Alumni  of  the  New  York 
University  Law  School,  as  follows: 

"  The  Eighteenth  Amendment  required  millions 
of  men  and  women  to  abruptly  give  up  habits 
and  customs  of  life  which  they  thought  not  Im- 
moral or  wrong,  but  which,  on  the  contrary,  they 
M^elleved  to  be  necessary  to  their  reasonable  com- 


THE  LAW  ENFORCERS  AND  THE  LAW 

fort  and  happiness,  and  thereby,  as  we  all  now 
see,  respect  not  only  for  that  law,  but  for  all  law, 
has  been  put  to  an  unprecedented  and  demoral- 
izing strain  in  our  country,  the  end  of  which  it  is 
difficult  to  see. 


Upon  all  this,  however,  as  concerned  with 
the  conduct  of  the  people  at  large,  perhaps 
enough  has  been  said  in  previous  chapters. 
What  I  wish  to  dwell  upon  at  this  point  is 
the  conduct  of  those  who,  either  in  the  Gov- 
ernment itself,  or  in  the  power  behind  the 
Government — the  Anti-Saloon  League — are 
carrying  on  the  enforcement  of  the  Prohibi- 
tion law.  They  are  not  carrying  it  on  in  the 
way  in  which  the  enforcement  of  other  laws 
is  carried  on.  In  thexase  af  a  normal  crim- 
inal law — and  it  must  always  be  remembered 
that  the  Volstead  act  is  a  crimiftal'-iaw^just 
liRe  the  laws  against  burglary,  or  forgery,  or 
arson — those  who  are  responsible  for  its  en- 
forcement regard  themselves  _as_adm4nistra- 
tors  of  the  law,  neither  more  nor  less.  But 
the  enforcement  of  the  J^rohibition  law  is 
something  quite  different:  it  is  not  a  work  of 


58       WHAT  PROHIBITION  HAS  DONE 

administration  but  of  strategy;  not  a  question 
of  seeing  that  the  law  is  obeyed  by  everybody, 
.^ — biit  of  carrying  on  a  campaign  against  the 
-defiers  of  the  law  justjLS  one  would  carry, on  a 
campaign  against  a  foreign  enemy. '  The  gen- 
__eraJsin  charge  of  the  campaign  decide  whether 
they  shall   or  shall  not  attack  a   particular 
body  5f  the  enemy;  and  their  decision  isyCon- 
trolled  by  the  same  kind  of  calculation  as  that 
made  by  the  generals  in  a  war_ot  arms— ^  cal- 
culation of  the  chances  of  victory.     Where  the 
enemy  is  too  numerous,  or  too  _strongly*  en- 
trenched, or  too  widely  scattered,  they  leave 

hiiif^aTone;  where  they  can  drive  him  into  a 

_^_ » 

corner  and  capture  him,  they  attack. 

To  realize  how  thoroughly  this  policy  is 
recognized  as  a  simple  fact,  one  can  hardly 
do  better  than  quote  these  perfectly  naive  and 
sincere  remarks  in  an  editorial  entitled  ^'Gov- 
ernment Bootlegging,"  in  the  New  York 
Tribune,  a  paper  that  has  never  been  un- 
friendly to  the  Eighteenth  Amendment: 

That  American  ships  had  wine  lists  was  no  news 
to  the  astute  Wayne  B.  Wheeler,  generalissimo 


THE  LAW  ENFORCERS  AND  THE  LAW   59 

of  the  Prohibition  forces.  He  was  fully  in- 
formed before  Mr.  Gallivan  spoke,  and  by  silence 
gave  consent  to  them.  He  was  complaisant,  it 
may  be  assumed,  because  he  did  not  wish  to  fur- 
nish another  argument  to  those  who  would  re- 
peal or  modify  the  Volstead  act.  He  has  made 
no  fuss  over  home  brew  and  has  allowed  ruralists 
to  make  cider  of  high  alcoholic  voltage.  He  saw 
It  would  be  difficult,  if  not  impossible,  to  stop 
home  manufacture  and  did  not  wish  to  swell  the 
number  of  anti-Volsteaders.  He  was  looking  to 
securing  results  rather  than  to  being  gloriously 
but  futilely  consistent. 

Similarly  the  practical  Mr.  Wheeler  foresaw 
that  if  American  ships  were  bone-dry  the  bibu- 
lous would  book  on  foreign  ships  and  the  total 
consumption  of  beverages  would  not  be  mate- 
rially diminished.  For  a  barren  victory  he  did 
not  care  to  have  Volsteadism  carry  the  blame  of 
driving  American  passenger  ships  from  the  sea. 
Prohibitionists  who  have  not  put  their  brains  in 
storage  may  judge  whether  or  not  his  tactics  are 
good  and  contribute  to  the  end  he  seeks. 

Now  from  the  standpoint  of  pure  calculation 
directed  to  the  attainment  of  a  strategic  end, 
in  a  warfare  between  the  power  of  a  Govern- 
ment and  the  forces  of  a  very  large  proportion 
of  the  population  over  which  it  holds  sway, 


60       WHAT  PROHIBITION  HAS  DONE 

the  Tribune  may  be  entirely  right.  But  what 
is  left  of  the  idea  of  respect  for  law?  With 
what  effectiveness  can  either  President  An- 
gell  or  President  Harding  appeal  to  that  sen- 
timent when  it  is  openly  admitted  that  the 
Government  not  only  deliberately  overlooks 
violations  of  the  law  by  millions  of  private 
individuals,  but  actually  directs  that  the  law 
shall  be  violated  on  its  own  ships,  for  fear  that 
the  commercial  loss  entailed  by  doing  other- 
wise would  further  excite  popular  resentment 
against  the  law?  It  has  only  to  be  added  that 
since  the  date  of  that  editorial  (June  i8,  1922) 
the  Anti-Saloon  League  has  come  out  strongly 
against  the  selling  of  liquor  on  Government- 
owned  ships — a  change  which  only  empha- 
sizes the  point  I  am  making.  For,  in  spite  of 
the  Tribune's  shrewd  observations,  it  soon  be- 
came clear  that  the  Volstead  act  was  being  so 
terribly  discredited  by  the  preposterous  spec- 
tacle of  the  Government  selling  liquor  on  its 
own  ships  that  something  had  to  be  done  about 
it;  and  it  was  only  under  the  pressure  of  this 
situation   that   a   new   line   of   strategy   was 


THE  LAW  ENFORCERS  AND  THE  LAW  61 

adopted  by  the  Anti-Saloon  League.  What 
it  will  do  if  it  finds  that  it  cannot  put  through 
its  plan  of  excluding  liquor  from  all  ships, 
American  and  foreign,  remains  to  be  seen. 

Now  it  may  be  replied  to  all  this  that  a  cer- 
tain amount  of  laxity  is  to  be  found  in  the  ex- 
ecution of  all  laws;  that  the  resources  at  the 
disposal  of  government  not  being  sufficient  to 
secure  the  hunting  down  and  punishment  of 
all  offenders,  our  executive  and  prosecuting 
officers  and  police  and  courts  apply  their  pow- 
ers in  such  directions  and  in  such  ways  as  to 
accomplish  the  nearest  approach  possible  to  a 
complete  enforcement  of  the  law.  But  the 
reply  is  worthless.  Because  the  enforcement 
of  all  laws  is  in  some  degree  imperfect,  it  does 
not  follow  that  there  is  no  disgrace  and  no 
mischief  in  the  spectacle  of  a  law  enforced 
with  spectacular  vigor,  and  even  violence,  in 
a  thousand  cases  where  such  enforcement  can- 
not be  successfully  resisted,  and  deliberately 
treated  as  a  dead  letter  in  a  hundred  thousand 
cases  where  its  enforcement  would  show  how 
widespread  and  intense  is  the  people's  disap- 


62       WHAT  PROHIBITION  HAS  DONE 

proval  of  the  law.  There  are  many  instances 
in  which  a  law  has  become  a  dead  letter; 
where  this  is  generally  recognized  no  appre- 
ciable harm  is  done,  since  universal  custom 
operates  as  a  virtual  repeal.  But  here  is  a 
case  of  a  law  enforced  with  militant  energy 
where  it  suits  the  officers  of  the  Government 
to  enforce  it,  systematically  ignored  in  mil- 
lions of  cases  by  the  same  officers  because  it 
suits  them  to  do  that,  and  cynically  violated 
by  the  direct  orders  of  the  Government  itself 
when  this  course  seems  recommended  by  a 
cold-blooded  calculation  of  policy!  If  the 
laws  against  larceny,  or  arson,  or  burglary,  or 
murder,  were  executed  in  this  fashion,  what 
standing  would  the  law  have  in  anybody's 
mind?  Yet  in  the  case  of  these  crimes,  the 
law  only  makes  effective  the  moral  code  which 
substantially  the  whole  of  the  community  re- 
spects as  a  fundamental  part  of  its  ethical 
creed;  and  accordingly  even  if  the  law  were 
administered  in  any  such  outrageous  fashion 
as  is  the  case  with  Prohibition,  it  would  still 
retain  in  large  measure  its  moral  authority. 


THE  LAW  ENFORCERS  AND  THE  LAW     63 

But  in  the  case  of  the  Prohibition  law,  an 
enormous  minority,  and  very  possibly  a  ma- 
jority, of  the  people  regard  the  thing  it  for- 
bids as  perfectly  innocent  and,  within  proper 
limits,  eminently  desirable;  the  only  moral 
sanction  that  it  has  in  their  minds  is  that  of  its 
being  on  the  statute  books.  What  can  that 
moral  sanction  possibly  amount  to  when  the 
administration  of  the  law  itself  furnishes  the 
most  notorious  of  all  examples  of  disrespect 
for  its  commands? 

There  is  another  aspect  of  the  enforcement 
of  the  law  which  invites  comment,  but  upon 
which  I  shall  say  only  a  few  words.  I  refer 
to  the  many  invasions  of  privacy,  unwar- 
ranted searches,  etc.,  that  have  taken  place  in 
the  execution  of  the  law.  If  this  went  on 
upon  a  much  larger  scale  than  has  actually 
been  the  case,  it  would  justly  be  the  occasion 
for  perhaps  the  most  severe  of  all  the  indict- 
ments against  the  Volstead  act;  for  it  would 
mean  that  Americans  are  being  habituated  to 
indifference  in  regard  to  the  violation  of  one 
of  their  most  ancient  and  most  essential  rights. 


64       WHAT  PROHIBITION  HAS  DONE 

But  in  fact  the  danger  of  public  resentment 
over  such  a  course  has  been  the  chief  cause  of 
the  sagacious  strategy  which  has  character- 
ized the  policy  of  the  Government;  or  per- 
haps one  should  rather  say,  the  Anti-Saloon 
League,  for  it  is  the  League,  and  not  the  Gov- 
ernment, that  is  the  predominant  partner  in 
this  matter.  For  the  present,  the  League  has 
been  ''lying  low"  in  the  matter  of  search  and 
seizure;  but  if  it  should  ever  feel  strong 
enough  to  undertake  the  suppression  of  home 
brew,  there  is  not  the  faintest  question  but  that 
it  will  press  forward  the  most  stringent  con- 
ceivable measures  of  search  and  seizure.  Ac- 
cordingly, there  opens  up  before  the  eyes  of  the 
American  people  this  pleasing  prospect:  If 
the  present  struggle  of  the  League  (or  the 
Government)  with  bootleggers  and  moonshin- 
ers and  smugglers  is  brought  to  a  successful 
conclusion,  there  will  naturally  be  a  greater 
resort  than  ever  to  home  manufacture;  and 
equally  naturally,  it  will  then  be  necessary  for 
the  League  (or  the  Government)  to  under- 
take  to   stamp    out   that   practice.     But   ob- 


THE  LAW  ENFORCERS  AND  THE  LAW  65 

viously  this  cannot  be  done  without  inaugurat- 
ing a  sweeping  and  determined  policy  of 
search  and  seizure  in  private  houses;  a  beauti- 
ful prospect  for  ^'the  land  of  the  free,"  for  the 
inheritors  of  the  English  tradition  of  indi- 
vidual liberty  and  of  the  American  spirit  of 
'76 — a  sight  for  gods  and  men  to  weep  over  or 
laugh  at  I 


CHAPTER  VII 

NATURE  OF  THE  PROHIBITIONIST 
TYRANNY 

That  there  are  some  things  which,  however 
good  they  may  be  in  themselves,  the  majority 
has  no  right  to  impose  upon  the  minority,  is 
a  doctrine  that  was,  I  think  I  may  say,  uni- 
versally understood  among  thinking  Ameri- 
cans of  all  former  generations.  It  was  often 
forgotten  by  the  unthinking;  but  those  who 
felt  themselves  called  upon  to  be  serious  in- 
structors of  public  opinion  were  always  to  be 
counted  on  to  assert  it,  in  the  face  of  any  pop- 
ular clamor  or  aberration.  The  most  deplor- 
able feature,  to  my  mind,  of  the  whole  story 
of  the  Prohibition  amendment,  was  the  failure 
of  our  journalists  and  leaders  of  opinion,  with 
a  few  notable  exceptions,  to  perform  this  duty 
which  so  peculiarly  devolves  upon  them. 
Lest  any  reader  should  imagine  that  this 

66 


NATURE  OF  PROHIBITION  TYRANNY     67 

doctrine  of  the  proper  limits  of  majority 
power  is  something  peculiar  to  certain  politi- 
cal theorists,  I  will  quote  just  one  authority 
— where  I  might  quote  scores  as  well — to 
which  it  is  impossible  to  apply  any  such  char- 
acterization. It  ought,  of  course,  to  be  un- 
necessary to  quote  any  authority,  since  the 
Constitution  itself  contains  the  clearest  pos- 
sible embodiment  of  that  doctrine.  In  the 
excellent  little  book  of  half  a  century  ago 
referred  to  in  a  previous  chapter,  Nordhoffs 
"Politics  for  Young  Americans,"  the  chapter 
entitled  "Of  Political  Constitutions''  opens  as 
follows : 

A  political  Constitution  is  the  Instrument  or 
compact  In  which  the  rights  of  the  people  who 
adopt  It,  and  the  powers  and  responsibilities  of 
their  rulers,  are  described,  and  by  which  they  are 
fixed. 

The  chief  object  of  a  Constitution  is  to  limit 
the  power  of  majorities, 

A  moment's  reflection  will  tell  you  that  mere 
majority  rule,  unlimited,  would  be  the  most 
grinding  of  tyrannies;  the  minority  at  any  time 
would  be  mere  slaves,  whose  rights  to  life,  prop- 


68       WHAT  PROHIBITION  HAS  DONE 

erty  and  comfort  no  one  who  chose  to  join  the 
majority  would  be  bound  to  respect. 


All  this  is  stated,  and  the  central  point  put  in 
italics,  by  Mr.  Nordhoff,  as  matter  that  must 
be  impressed  upon  young  people  just  begin- 
ning to  think  about  public  questions,  and  not 
at  all  as  matter  of  controversy  or  doubt.  The 
last  sentence,  to  be  sure,  requires  amplifica- 
tion; Mr.  Nordhoff  certainly  did  not  intend 
his  young  readers  to  infer  that  such  tyranny 
as  he  describes  is  either  sure  to  occur  in  the 
absence  of  a  Constitution  or  sure  to  be  pre- 
vented by  it.  The  primary  defense  against 
it  is  in  the  people's  own  recognition  of  the 
proper  limits  of  majority  power;  what  Mr. 
Nordhoff  wished  to  impress  upon  his  readers 
is  the  part  played  by  a  Constitution  in  fixing 
that  recognition  in  a  strong  and  enduring 
form. 

The  quotation  I  have  in  mind,  however, 
from  one  of  the  highest  of  legal  authorities, 
has  no  reference  to  the  United  States  Consti- 
tution or  to  any  Constitution.     It  deals  with 


NATURE  OF  PROHIBITION  TYRANNY     69 

the  essential  principles  of  law  and  of  govern- 
ment. It  is  from  a  book  by  the  late  James  C. 
Carter,  who  was  beyond  challenge  the  leader 
of  the  bar  of  New  York,  and  was  also  one  of 
the  foremost  leaders  in  movements  for  civic- 
improvement.  The  book  bears  the  title 
^'Law:  its  Origin,  Growth  and  Function,''  and 
consists  of  a  course  of  lectures  prepared  for 
delivery  to  the  law  school  of  Harvard  Uni- 
versity seventeen  years  ago;  which,  it  is  to 
be  noted,  was  before  the  movement  for  Na- 
tional Prohibition  had  got  under  way.  Mr. 
Carter  was  not  arguing  for  any  specific  object, 
but  was  impressing  upon  the  young  men 
general  truths  that  had  the  sanction  of  ages 
of  experience,  and  were  the  embodiment  of 
the  wisest  thought  of  generations.  Let  us 
hear  a  few  of  these  truths  as  he  laid  them 
down : 

Nothing  Is  more  attractive  to  the  benevolent 
vanity  of  men  than  the  notion  that  they  can  effect 
great  Improvement  In  society  by  the  simple  proc- 
ess of  forbidding  all  wrong  conduct,  or  conduct 
which  they  think  is  wrong,  by  law?  and  of  enjoin- 


70       WHAT  PROHIBITION  HAS  DONE 

Ing  all  good  conduct  by  the  same  means,  (p.  221 ) 
The  principal  danger  lies  in  the  attempt  often 
made  to  convert  into  crimes  acts  regarded  by 
large  numbers,  perhaps  a  majority,  as  innocent 
— that  Is  to  practise  what  is,  in  fact,  tyranny. 
While  all  are  ready  to  agree  that  tyranny  is  a 
very  mischievous  thing,  there  is  not  a  right  under- 
standing equally  general  of  what  tyranny  is. 
Some  think  that  tyranny  is  a  fault  only  of  des- 
pots, and  cannot  be  committed  under  a  repub- 
lican form  of  government;  they  think  that  the 
maxim  that  the  majority  must  govern  justifies  the 
majority  in  governing  as  it  pleases,  and  requires 
the  minority  to  acquiesce  with  cheerfulness  in 
legislation  of  any.  character,  as  if  what  is  called 
self-government  were  a  scheme  by  which  differ- 
ent parts  of  the  community  may  alternately  en- 
joy the  privilege  of  tyrannizing  over  each  other, 
(p.  246) 

Speaking  in  particular  of  the  evil  effects  of 
that  particular  "species  of  criminal  legisla- 
tion to  which  sumptuary  laws  belong,"  Mr. 
Carter,  after  dwelling  upon  the  subject  in  de- 
tail, says: 

An  especially  pernicious  effect  is  that  society 
becomes  divided  between  the  friends  and  the  foes 


NATURE  OF  PROHIBITION  TYRANNY      71 

of  repressive  laws,  and  the*  opposing  parties  be- 
come animated  with  hostility  which  prevents 
united  action  for  purposes  considered  beneficial 
by  both.  Perhaps,  the  worst  of  all  is  that  the 
general  regard  and  reverence  for  law  are  im- 
paired, a  consequence  the  mischief  of  which  can 
scarcely  be  estimated  (p.  247). 

To  prevent  consequences  like  these,  spring- 
ing as  they  do  from  the  most  deep-seated  qual- 
ities of  human  nature,  by  pious  exhortations 
is  a  hopeless  undertaking.  But  if  it  be  so  in 
general — if  the  consequences  of  majority 
tyranny  in  the  shape  of  repressive  lav^s  gov- 
erning personal  habits  could  be  predicted  so 
clearly  upon  general  principles — how  vastly 
more  certain  and  more  serious  must  these  con- 
sequences be  when  such  a  law  is  fastened  upon 
the  people  by  means  that  would  be  abhorrent 
even  in  the  case  of  any  ordinary  law!  The 
people  who  object  to  Prohibition  are  exult- 
antly told  by  their  masters  that  it  is  idle  for 
them  to  think  of  throwing  off  their  chains; 
that  the  law  is  riveted  upon  them  by  the  Con- 
stitution, and  the  possibility  of  repeal  is  too 
remote  for  practical  consideration.     Thus  the 


72       WHAT  PROHIBITION  HAS  DONE 

one  thought  that  might  mitigate  resentment 
and  discountenance  resistance,  the  thought 
that  freedom  might  be  regained  by  repeal,  is 
set  aside;  and  the  result  is  what  we  have  been 
witnessing. 

On  this  phase  of  the  subject,  however, 
enough  has  been  said  in  a  previous  chapter. 
What  I  wish  to  point  out  at  present  is  some 
peculiarities  of  National  Prohibition  which 
make  it  a  more  than  ordinarily  odious  exam- 
ple of  majority  tyranny. 

National  Prohibition  in  the  United  States 
— granting,  for  the  sake  of  argument,  that  it 
expresses  the  will  of  a  majority — is  not  a  case 
merely  of  a  greater  number  of  people  forcing, 
their  standards  of  life  upon  a  smaller  number, 
in  a  matter  in  which  such  coercion  by  a  ma- 
jority is  in  its  nature  tyrannical.  The  popu- 
lation of  the  United  States  is,  in  more  than  one 
respect,  composed  of  parts  extremely  diverse 
as  regards  the  particular  subject  of  this  leg- 
islation. The  question  of  drink  has  a  totally 
different  aspect  in  the  South  from  what  it  has 
in  the  North ;  a  totally  different  aspect  in  the 


NATURE  OF  PROHIBITION  TYRANNY      73' 

cities  from  what  it  has  in  the  rural  districts 
or  in  small  towns;  to  say  nothing  of  other 
differences  which,  though  important,  are  of 
less  moment.  How  profoundly,  the  whole 
course  of  the  Prohibition  movement  has  been 
affected  by  the  desire  of  the  South  to  keep 
liquor  away  from  the  negroes,  needs  no  elab- 
oration; it  would  not  be  going  far  beyond  the 
truth  to  say  that  the  people  of  New  York  are 
being  deprived  of  their  right  to  the  harmless 
enjoyment  of  wine  and  beer  in  order  that  the 
negroes  of  Alabama  and  Texas  may  not  get 
beastly  drunk  on  rotgut  whiskey.  If  the 
South  had  stuck  to  its  own  business  and  to  its 
traditional  principle  of  State  autonomy — a 
principle  which  the  South  invokes  as  ardently 
as  ever  when  it  comes  to  any  other  phase  of 
the  negro  question — there  would  never  have 
been  a  Prohibition  Amendment  to  the  Consti- 
tution of  the  United  States;  and  at  the  same 
time  the  South  would  have  found  it  perfectly 
possible  to  deal  effectively  with  its  own  drink 
problem  by  energetic  execution  of  its  own 
laws,  made  possible  by  its  own  public  opinion. 


74       WHAT  PROHIBITION  HAS  DONE 

Nor  is  the  case  essentially  different  as  regards 
the  West;  the  very  people  who  are  loudest  in 
their  shouting  for  the  Eighteenth  Amendment 
are  also  most  emphatic  in  their  praises  of 
what  Kansas  accomplished  by  enforcing  her 
own  Prohibition  law.  Thus  the  Prohibition- 
ist tyranny  is  in  no  small  measure  a  sectional 
tyranny,  which  is  of  course  an  aggravated 
form  of  majority  tyranny. 

But  what  needs  insisting  on  even  more  than 
this  is  the  way  in  which  the  country  districts 
impose  their  notions  about  Prohibition  upon 
the  people  of  the  cities,  and  especially  of  the 
great  cities.  When  attention  is  called  to  the 
wholesale  disregard  of  the  law,  contempt  for 
the  law,  and  hostility  to  the  law  which  is  so 
manifest  in  the  big  cities,  the  champions  of 
Prohibition  in  the  press — including  the  New 
York  press — never  tire  of  saying  that  it  is  only 
in  New  York  and  a  few  other  great  cities  that 
this  state  of  things  exists.  But  everybody 
knows  that  the  condition  exists  not  only  in 
^'a  few,"  but  in  practically  all,  of  our  big 
cities ;  and  for  that  matter  that  it  exists  in  a 


NATURE  OF  PROHIBITION  TYRANNY      75 

large  proportion  of  all  the  cities  of  the  coun- 
try, big  and  little.  But  if  we  confine  ourselves 
only  to  the  34  cities  having  a  population  of 
200,000  or  more,  we  have  here  an  aggregate 
population  of  almost  exactly  25,000,000 — 
nearly  one-fourth  of  the  entire  population  of 
the  country.  Is  it  a  trifling  matter  that  these 
great  communities,  this  vast  population  of 
large-city  dwellers,  should  have  their  mode 
of  life  controlled  by  a  majority  rolled  up  by 
the  vote  of  people  whose  conditions,  whose 
advantages  and  disadvantages,  whose  opportu- 
nities and  mode  of  life,  and  consequently 
whose  desires  and  needs,  are  of  a  wholly  dif- 
ferent nature?  Could  the  tyranny  of  the  ma- 
jority take  a  more  obnoxious  form  than  that 
of  sparse  rural  populations,  scattered  over  the 
whole  area  of  the  country  from  Maine  to 
Texas  and  from  Georgia  to  Oregon,  deciding 
for  the  crowded  millions  of  New  York  and 
Chicago  that  they  shall  or  shall  not  be  per- 
mitted to  drink  a  glass  of  beer? 

Nor  is  it  only  the  obvious  tyranny  of  such 
a  regime  that  makes  it  so  unjustifiable.    There 


76       WHAT  PROHIBITION  HAS  DONE 

are  some  special  features  in  the  case  which 
accentuate  its  unreasonableness  and  unfair- 
ness. In  the  American  village  and  small 
town,  the  use  of  alcoholic  drinks  presents  al- 
most no  good  aspect.  The  countryman  sees 
nothing  but  the  vile  and  sordid  side  of  it. 
The  village  grogshop,  the  bar  of  the  small- 
town hotel,  in  America  has  presented  little 
but  the  gross  and  degrading  aspect  of  drink- 
ing. Prohibition  has  meant,  to  the  average 
farmer,  the  abolition  of  the  village  groggery 
and  the  small-town  barroom.  That  it  plays 
a  very  different  part  in  the  lives  of  millions 
of  city  people — and  for  that  matter  that  it 
does  so  in  the^lives  of  millions  of  industrial 
workers  in  smaller  communities — is  a  notion 
that  never  enters  the  farmer's  mind.  And  to 
this  must  be  added  the  circumstance  that  the 
farmer  can  easily  make  his  own  cider  and 
other  alcoholic  drinks,  and  feels  quite  sure 
that  Prohibition  will  never  seriously  interfere 
with  his  doing  so.  Altogether,  we  have  here 
a  case  of  one  element  of  the  population  de- 
creeing the  mode  of  life  of  another  element 


NATURE  OF  PROHIBITION  TYRANNY     77 

of  whose  circumstances  and  desires  they  have 
no  understanding,  and  who  are  affected  by  tho 
decree  in  a  wholly  different  way  from  that 
in  which  they  themselves  are  affected  by  it. 

Many  other  points  might  be  made,  further 
to  emphasize  the  monstrosity  of  the  Prohibi- 
tion that  has  been  imposed  upon  our  country. 
Of  these  perhaps  the  most  important  one  is 
the  way  in  which  the  law  operates  so  as  to  be 
effective  against  the  poor,  and  comparatively 
impotent  against  the  rich.  But  this  and  other 
points  have  been  so  abundantly  brought  before 
the  public  in  connection  with  the  news  of  the 
day  that  it  seemed  hardly  necessary  to  dwell 
upon  them.  My  object  has  been  rather  to 
direct  attention  to  a  few  broad  considerations, 
less  generally  thought  of.  The  objection  that 
applies  to  sumptuary  laws  in  general  has  ten- 
fold force  in  the  case  of  National  Pro- 
hibition riveted,  down  by  the  Constitution,  and 
imposed  upon  the  whole  nation  by  particular 
sections  and  by  particular  elements  of  the  pop- 
ulation. 

A  question  of  profound  interest  in  connec- 


78       WHAT  PROHIBITION  HAS  DONE 

tion  with  this  aspect  of  Prohibition  demands 
a  few  words  of  discussion.  It  has  been  as- 
serted with  great  confidence,  and  denied  with 
equal  positiveness,  that  Prohibition  has  had 
the  effect  of  very  greatly  increasing  the  addic- 
tion to  narcotic  drugs.  I  confess  my  inability 
to  decide,  from  any  data  that  have  come  to 
my  attention,  which  of  these  contradictory 
assertions  is  true.  But  it  is  not  denied  by 
anybody,  I  believe,  that,  whether  Prohibition 
has  anything  to  do  with  the  case  or  not,  the 
use  of  narcotic  drugs  in  this  country  is  several 
times  greater  per  capita  than  it  is  in  any  of 
the  countries  of  Europe — six  or  seven  times 
as  great  as  in  most.  Why  this  should  be  so,  it 
is  perhaps  not  easy  to  determine.  The  causes 
may  be  many.  But  I  submit  that  it  is  at  least 
highly  probable  that  one  very  great  cause  of 
this  extraordinary  and  deplorable  state  of 
things  is  the  atmosphere  of  reprobation  which 
in  America  has  so  long  surrounded  the  prac- 
tice of  moderate  drinking.  Any  resort  what- 
ever to  alcoholic  drinks  being  held  by  so  large 
a  proportion   of  the  persons  who   are  most 


NATURE  OF  PROHIBITION  TYRANNY      79 

influential  in  religious  and  educational  circles 
to  be  sinful  and  incompatible  with  the  best 
character,  it  is  almost  inevitable  that,  in  thou- 
sands of  cases,  desires  and  needs  which  would 
find  their  natural  satisfaction  in  temperate 
and  social  drinking  are  turned  into  the  secret 
and  infinitely  more  unwholesome  channel  of 
drug  addiction.  How  much  of  the  extraor- 
dinary extent  of  this  evil  in  America  may  be 
due  to  this  cause,  I  shall  of  course  not  venture 
to  estimate;  but  that  it  is  a  large  part  of  the 
explanation,  I  feel  fairly  certain.  And  my 
belief  that  it  is  so  is  greatly  strengthened  by 
the  familiar  fact  that  in  the  countries  in  which 
wine  is  cheap  and  abundant,  and  is  freely  used 
by  all  the  people,  drunkenness  is  very  rare  in 
comparison  with  other  countries.  As  easy 
and  familiar  recourse  to  wine  prevents  resort 
to  stronger  drinks,  so  it  seems  highly  probable 
that  the  practice  of  temperate  drinking  would 
in  thousands  of  cases  obviate  the  craving  for 
drugs.  But  when  all  drinking,  temperate  and 
intemperate,  is  alike  put  under  the  ban,  the 
temptation  to  secret  indulgence  in  drugs  gets 


80       WHAT  PROHIBITION  HAS  DONE 

a  foothold ;  and  that  temptation  once  yielded 
to,  the  downward  path  is  swiftly  trodden. 

Finally,  there  is  a  broad  view  of  the  whole 
subject  of  the  relation  of  Prohibition  to  life, 
which  these  last  reflections  may  serve  to  sug- 
gest. When  a  given  evil  in  human  life  pre- 
sents itself  to  our  consideration,  it  is  a  natural 
and  a  praiseworthy  impulse  to  seek  to  effect 
its  removal.  To  that  impulse  is  owing  the 
long  train  of  beneficent  reforms  which  form 
so  gratifying  a  feature  of  the  story  of  the  past 
century  and  more.  But  that  story  would  have 
been  very  different  if  the  reformer  had  in 
every  instance  undertaken  to  extirpate  what- 
ever he  found  wrong  or  noxious.  To  strike 
with  crusading  frenzy  at  what  you  have 
worked  yourself  up  into  believing  is  wholly 
an  accursed  thing  is  a  tempting  short  cut,  but 
is  fraught  with  the  possibility  of  all  manner 
of  harm.  In  the  case  of  Prohibition,  I  have 
endeavored  to  point  out  several  of  the  forms 
of  harm  which  it  carries  with  it.  But  in  ad- 
dition to  those  that  can  so  plainly  be  pointed 
out,  there  is  a  broader  if  less  definite  one. 


NATURE  OF  PROHIBITION  TYRANNY     81 

When  we  have  choked  off  a  particular  avenue 
of  satisfaction  to  a  widespread  human  desire; 
when,  foiled  perhaps  in  one  direction,  we  at- 
tack with  equal  fury  the  possibility  of  escape 
in  another  and  another;  who  shall  assure  us 
that,  debarred  of  satisfaction  in  old  and  tried 
ways,  the  same  desires  will  not  find  vent  in 
far  more  injurious  indulgences?  How  dif- 
ferent if,  instead  of  crude  and  wholesale  com- 
pulsion, resort  were  had — as  it  had  been  had 
before  the  Prohibitionist  mania  swept  us  off 
our  feet — to  well-considered  measures  of  reg- 
ulation and  restriction,  and  to  the  legitimate 
influences  of  persuasion  and  example!  The 
process  is  slower,  to  be  sure,  but  it  had  accom- 
plished wonderful  improvement  in  our  own 
time  and  before;  what  it  gained  was  solid 
gain;  and  it  did  not  invite  either  the  resent- 
ment, the  lawlessness,  or  the  other  evils  which 
despotic  prohibition  of  innocent  pleasure  car- 
ries in  its  train. 


JlA-S 


CHAPTER  VIII 
ONE-HALF  OF  ONE  PER  CENT. 

The  Eighteenth  Amendment  forbids  "the 
manufacture,  sale  or  transportation  of  intox- 
icating liquors  within,  the  importation  thereof 
into,  or  the  exportation  thereof  from  the 
United  States  and  all  territory  subject  to  the 
jurisdiction  thereof  for  beverage  purposes." 

The  Volstead  act  declares  that  the  phrase 
"intoxicating  liquor,"  as  used  in  the  act,  "shall 
be  construed  to  include  ^all  liquors'  contain- 
ing one-half  of  one  percentum  or  more  of 
alcohol  by  volume  w^hich  are  fit  for  use  for 
beverage  purposes." 

Since  everybody  knows  that  a  drink  contain- 
ing one-half  of  one  per  cent,  of  alcohol  is  not 
in  fact  an  intoxicating  drink,  a  vast  amount 
of  indignation  has  been  aroused,  among  op- 
ponents   of    National    Prohibition,    by    this 

82 


ONE-HALF  OF  ONE  PER  CENT.    83 

Stretching  of  the  letter  of  the  Amendivient.  ^ 
I  have  to  confess  that  I  cannot  get  excited  over 
this  particular  phase  of  the  Volstead  legisla- 
tion. There  is,  to  be  sure,  something  offensive 
about  persons  v^ho  profess  to  be  peculiarly 
the  exponents  of  high  morality  being  willing 
to  attain  a  practical  end  by  inserting  in  a  law 
a  definition  which  declares  a  thing  to  be  what 
in  fact  it  is  not;  but  the  offense  is  rather  one 
of  form  than  of  really  important  substance. 
The  Supreme  Court  has  decided  that  Congress 
did  not  exceed  its  powers  in  making  this  defi- 
nition of  ''intoxicating  liquor";  and,  while 
this  does  not  absolve  the  makers  of  the  law 
of  the  offense  against  strict  truthfulness,  it 
may  rightly  be  regarded  as  evidence  that  the 
transgression  was  not  of  the  sort  that  consti- 
tuted a  substantial  usurpation — the  assump- 
tion by  Congress  of  a  power  lying  beyond  the 
limits  of  the  grant  conferred  upon  it  by  the 
Eighteenth  Amendment.  If  Congress  chooses 
to  declare  one-half  of  one  per  cent,  as  its  no- 
tion of  the  kind  of  liquor  beyond  which  there 
would  occur  a  transgression  of  the  Eighteenth 


84       WHAT  PROHIBITION  HAS  DONE 

Article  of  the  Amendments  to  the  Constitu- 
tion, says  the  Supreme  Court  in  effect,  it  may 
do  so  in  the  exercise  of  the  power  granted  to 
it  "to  enforce  this  Article  by  appropriate  leg- 
islation." 

Not  a  little  effort  has  been  expended  by 
lawyers  and  legislators — State  and  national 
— upon  the  idea  of  bringing  about  a  raising  of 
the  permitted  percentage  to  2.75.  That  fig- 
ure appears  to  represent  quite  accurately  the 
point  at  which,  as  a  matter  of  fact,  an 
alcoholic  liquor  becomes — in  any  real  and 
practical  sense — in  the  slightest  degree  intox- 
icating. But,  except  for  the  purpose  of  mak- 
ing something  like  a  breach  in  the  outer  wall 
of  the  great  Prohibition  fortress — the  purpose 
of  showing  that  the  control  of  the  Prohibition- 
ist forces  over  Congress  or  a  State  Legislature 
is  not  absolutely  unlimited — this  game  is  not 
worth  the  candle.  To  fight  hard  and  long 
merely  to  get  a  concession  like  this,  which  is 
in  substance  no  concession — to  get  permission 
to  drink  beer  that  is  not  beer  and  wine  that  is 
not  wine — is  surely  not  an  undertaking  worth 


ONE-HALF  OF  ONE  PER  CENT.    85 

the  expenditure  of  any  great  amount  of  civic 
energy. 

A  source  of  comfort  was,  however,  fur- 
nished to  advocates  of  a  liberalizing  of  the 
Prohibition  regime  by  the  very  fact  that  the 
Supreme  Court  did  sanction  so  manifest  a 
stretching  of  the  meaning  of  words  as  is  in- 
volved in  a  law  which  declares  any  beverage 
containing  as  much  as  one-half  of  one  per  cent, 
of  alcohol  to  be  an  ''intoxicating  liquor."  If 
a  liquor  that  is  not  intoxicating  can  by  Con- 
gressional definition  be  made  intoxicating,  it 
was  pointed  out,  then  by  the  same  token  a 
liquor  that  is  intoxicating  can  by  Congres- 
sional definition  be  made  non-intoxicating. 
Accordingly,  it  has  been  held  by  many,  if  Con- 
gress were  to  substitute  ten  per  cent,  say,  for 
one-half  of  one  per  cent.,  in  the  Volstead  act, 
by  which  means  beer  and  light  wines  would 
be  legitimated,  the  Supreme  Court  would  up- 
hold the  law  and  a  great  relief  from  the  pres- 
ent oppressive  conditions  would  bv  this  very 
simple  means  be  accomplished. 

What  the  Supreme  Court  would  actually 


8G       WHAT  PROHIBITION  HAS  DONE 

say  of  such  a  law  I  am  far  from  bold  enough 
to  attempt  to  say.  That  the  law  would  not  be 
an  execution  of  the  intent  of  the  Eighteenth 
Amendment  is  plain  enough;  and  it  would  be 
a  much  more  substantial  transgression  against 
its  purpose  than  is  the  one-half  of  one  per  cent, 
enactment.  Nevertheless  it  is  quite  possible 
that  the  Supreme  Court  would  decide  that  this 
deviation  to  the  right  of  the  zero  mark  is  as 
much  within  the  discretion  of  Congress  as  was 
the  Volstead  deviation  to  the  left.  Certainly 
the  possibility  at  least  exists  that  this  would 
be  so. 

But  whether  this  be  so  or  not,  it  is  quite 
plain  that  Congress,  if  it  really  wishes  to  do 
so,  can  put  the  country  into  the  position  where 
Prohibition  will  either  draw  the  line  above 
the  beer-and-wine  point  or  go  out  altogether. 
For  if  it  were  to  pass  an  act  repealing  the 
Volstead  law,  and  in  a  separate  act,  passed 
practically  at  the  same  time  but  after  the  re- 
pealing act,  enact  a  ten  per  cent,  prohibition 
law  (or  some  similar  percentage)  what  would 
be  the  result?     Certainly  there  is  nothing  un- 


ONE-HALF  OF  ONE  PER  CENT.    87 

constitutional  in  repealing  the  Volstead  act. 
There  would  have  been  nothing  unconstitu- 
tional in  a  failure  of  Congress  to  pass  any  act 
enforcing  the  Eighteenth  Amendment.  The 
Supreme  Court  can  put  out  of  action  a  law 
that  Congress  has  passed,  on  the  ground  of 
unconstitutionality;  but  it  cannot  put  into 
action  B.  law  that  Congress  has  not  passed. 
And  a  law  repealed  is  the  same  as  a  law  that 
has  not  been  passed.  Thus  if  Congress  really 
wished  to  legitimate  beer  and  wine,  it  could 
do  so;  leaving  it  to  the  Supreme  Court  to 
declare  whether  a  law  prohibiting  strong  alco- 
holic drinks  was  or  was  not  more  of  an  en- 
forcement of  the  Eighteenth  Amendment  than 
no  law  at  all — for  the  only  alternative  the 
Court  would  have  before  it  would  be  that  law 
or  nothing! 

I  do  not  say  that  I  favor  this  procedure; 
for  it  would  certainly  not  be  an  honest  fulfil- 
ment of  the  requirements  of  the  Eighteenth 
Amendment.  To  have  a  law  which  professes 
to  carry  out  an  injunction  of  the  Constitution 
but  w^hich  does  not  do  so  is  a  thing  to  be 


88       WHAT  PROHIBITION  HAS  DONE 

deplored.  But  is  it  more  to  be  deplored  than 
to  have  a  law  which  in  its  terms  does  carry 
out  the  injunction  of  the  Constitution  but 
which  in  its  actual  operation  does  no  such 
thing?  A  law  to  the  violation  of  which  in  a 
vast  class  of  instances — the  millions  of  in- 
stances of  home  brew — the  Government  de- 
liberately shuts  its  eyes?  A  law  the  violation 
of  which  in  the  class  of  instances  in  which  the 
Government  does  seriously  undertake  to  en- 
force it — bootlegging,  smuggling  and  moon- 
shining — is  condoned,  aided  and  abetted  by 
hundreds  of  thousands  of  our  best  citizens? 

It  is,  as  I  have  said  in  an  early  chapter,  a 
choice  of  evils;  and  it  is  not  easy  to  decide 
between  them.  On  the  one  hand,  we  have  the 
disrespect  of  the  Constitution  involved  in  the 
enactment  by  Congress  of  a  law  which  it 
knows  to  be  less  than  a  fulfilment  of  the  Con- 
stitution's mandate.  On  the  other  hand  we 
have  the  disrespect  of  the  law  involved  in  its 
daily  violation  by  millions  of  citizens  who 
break  it  without  the  slightest  compunction  or 
sense  of  guilt,  and  in  the  deliberate  failure 


ONE-HALF  OF  ONE  PER  CENT.    89 

of  the  Government  to  so  much  as  take  cogni- 
zance of  the  most  numerous  class  of  those  vio- 
lations. In  favor  of  the  former  course — the 
passing  of  a  wine-and-beer  law — it  may  at  least 
be  said  that  the  offense,  whether  it  be  great 
or  small,  is  committed  once  for  all  by  a  single 
action  of  Congress,  which,  if  left  undisturbed, 
would  probably  before  long  be  generally  ac- 
cepted as  taking  the  place  of  the  Amendment 
itself.  A  law  permitting  wine  and  beer  but 
forbidding  stronger  drinks  would  have  so 
much  more  public  sentiment  behind  it  than 
the  present  law  that  it  would  probably  be  de- 
cently enforced,  and  not  very  widely  resisted; 
and  though  such  a  law  would  be  justly  ob- 
jected to  as  not  an  honest  fulfilment  of  the 
Eighteenth  Amendment,  it  would,  I  believe, 
in  its  practical  effect,  be  far  less  demoralizing 
than  the  existing  statute,  the  Volstead  act. 
Accordingly,  while  I  cannot  view  the  enact- 
ment of  such  a  law  with  unalloyed  satisfac- 
tion, I  think  that,  in  the  situation  into  which 
we  have  been  put  by  the  Eighteenth  Amend- 
ment, the  proposal  of  a  wine-and-beer  law  to 


90       WHAT  PROHIBITION  HAS  DONE 

disj)lace  the  Volstead  law  deserves  the  sup- 
port of  good  citizens  as  a  practical  measure 
which  would  effect  a  great  improvement  on 
the  present  state  of  things. 


CHAPTER  IX 
PROHIBITION  AND  LIBERTY 

Liberty  is  not  to-day  the  watchword  that  it 
was  a  hundred  years  ago,  or  fifty  years  ago, 
or  thirty  years  ago.  Though  there  may  be 
much  doubt  as  to  the  causes  of  the  change,  it 
must  be  admitted  as  a  fact  that  the  feeling 
that  liberty  is  in  itself  one  of  the  prime  ob- 
jects of  human  desire,  a  precious  thing  to  be 
struggled  for  when  denied  and  to  be  jealously 
defended  when  possessed,  has  not  so  strong 
a  hold  on  men's  minds  at  this  time  as  it  had  in 
former  generations. 

Some  of  the  chief  reasons  for  this  change 
are  not,  however,  far  to  seek.  In  the  tre- 
mendous movement,  political  and  economic, 
that  has  marked  the  pasT  hundred  years,  three 
ideas  have  been  dominant — democracy,  effi- 
ciency,    humanitarianism.     None     of     these 

91 


92       WHAT  PROHIBITION  HAS  DONE 

three  ideas  is  inherently  bound  up  with  the 
idea  of  liberty;  and  indeed  each  one  of  the 
three  contains  the  seed  of  marked  hostility 
to  the  idea  of  liberty.  This  is  more  true,  and 
more' obviously  true,  of  efficiency  and  of  hu- 
manitarianism  than  it  is  of  democracy;  but  it 
is  true  in  no  small  measure  of  democracy  also. 
For  people  intent  upon  the  idea  that  gov- 
ernment must  be  democratic — that  is,  must 
reflect  the  will  of  the  majority — naturally  con- 
centrate upon  the  effort  to  organize  the  ma- 
jority and  increase  its  power;  a  process  which 
throws  into  the  shade  regard  for  individual 
rights  and  liberties,  and  even  tends  to  put 
them  somewhat  in  the  light  of  obstacles  to  the 
great  aim.  Furthermore,  the  democratic 
movement  has  set  for  itself  objects  beyond  the 
sphere  of  government;  and  in  the  domain  of 
economic  control,  democracy — if  that  is  the 
right  word  for  it — must  strive  for  collective 
power,  as  distinguished  from  individual  lib- 
erty, even  more  intently  than  in  the  field  of 
government. 

However,  in  the  case  of  democracy,  there  is 


PROHIBITION  AND  LIBERTY  93 

at  least  no  inherent  opposition  to  liberty;  such 
opposition  as  develops  out  of  it  may  be  re- 
garded as  comparatively  accidental.  Not  so 
with  efficiency  or  humanitarianism.  Even 
here,  however,  I  feel  that  a  word  of  warning 
is  necessary.  I  am  not  speaking  of  the  high- 
est and  truest  efficiency,  or  of  the  most  far- 
sighted  and  most  beneficent  humanitarianism. 
I  am  speaking  of  efficiency  as  understood  in 
the  common  use  of  the  term  as  a  label;  and 
I  am  speaking  of  humanitarianism  as  repre- 
sented by  the  attitude  and  the  mental  temper 
of  nearly  all  of  the  excellent  men  and  women 
who  actually  represent  that  cause  and  who 
devote  their  lives  to  the  problems  of  social 
betterment. 

To  the  efficiency  expert  and  to  his  multi- 
tude of  followers,  the  immediate  increase  of 
productivity  is  so  absorbing  an  object  that  if 
it  has  been  attained  by  a  particular  course 
of  action,  the  question  whether  its  attainment 
has  involved  a  sacrifice  of  liberty  seems  to  his 
mind  absolutely  trivial.  Of  course  this  would 
not  be  so  if  the  sacrifice  were  of  a  startling 


94*       WHAT  PROHIBITION  HAS  DONE 

nature;  but  short  of  something  palpably  gall- 
ing, something  grossly  offensive  to  the  pri- 
mary instincts  of  freemen,  he  simply  doesn't 
understand  how  any  person  of  sense  can  pre- 
tend to  be  concerned  about  it,  in  the  face  of 
demonstrated  success  from  the  efficiency 
standpoint. 

What  is  true  of  the  apostle  of  efficiency, 
and  his  followers,  is  even  more  emphatically 
true  of  the  humanitarian.  And,  difficult  as 
many  people  find  it  to  stand  out  against  the 
position  of  the  efficiency  advocate,  it  is  far 
more  difficult  to  dissent  from  that  of  the 
devotee  of  humanitarianism.  In  the  case  of 
the  first,  one  has  to  brace  up  one's  intellect 
to  resist  a  plausible  and  enticing  doctrine;  in 
the  case  of  the  second,  one  must,  in  a  sense, 
harden  one's  heart  as  well  as  stiffen  one's 
mind.  For  here  one  has  to  deal  not  with  a 
mere  calculation  of  a  general  increase  of  pros- 
perity or  comfort,  but  with  the  direct  extirpa- 
tion of  vice  and  misery  which  no  decent  per- 
son can  contemplate  without  keen  distress.  If 
the  humanitarian  finds  the  principle  of  liberty 


PROHIBITION  AND  LIBERTY  95 

thrust  in  the  way  of  his  task  of  healing  and 
rescue,  he  will  repel  with  scorn  the  idea  that 
any  such  abstraction  should  be  permitted  to 
impede  his  work  of  salvation;  and — especially 
if  the  idea  of  liberty  has,  through  other 
causes,  suffered  a  decline  from  its  once  high 
authority — he  will  find  multitudes  ready  to 
share  his  indignation.  And  he  will  find  still 
greater  multitudes  who  do  not  share  his  in- 
dignation, and  in  their  hearts  feel  much  mis- 
giving over  the  invasion  of  liberty,  but  who 
are  without  the  firmness  of  conviction,  or 
without  the  moral  courage,  necessary  to  the 
assertion  of  principle  when  such  assertion 
brings  with  it  the  danger  of  social  oppro- 
brium. The  leaders  in  humanitarian  re- 
forms, and  their  most  active  followers,  are, 
as  a  rule,  men  and  women  of  high  moral 
nature,  and  whether  wise  or  unwise,  broad- 
minded  or  narrow  and  fanatical,  are  justly 
credited  with  being  actuated  by  a  good 
motive;  unfortunately,  however,  these  attri- 
butes rarely  prevent  them  from  making  reck- 
less statements  as  to  the  facts  of  the  matter 


96       WHAT  PROHIBITION  HAS  DONE 

with  which  they  are  dealing,  nor  from  indulg- 
ing in  calumnious  abuse  of  those  who  oppose 
them.  Hence  thousands  of  persons  really 
averse  to  their  programme  give  tacit  or  luke- 
warm assent  to  it  rather  than  incur  the  odium 
which  outspoken  opposition  would  invite;  and 
accordingly,  true  though  it  is  that  the  idea 
of  liberty  is  not  cherished  so  ardently  or  so 
universally  as  in  a  former  day,  the  decline 
into  which  it  has  fallen  in  men's  hearts  and 
minds  is  by  no  means  so  great  as  surface  in- 
dications make  it  seem.  On  the  one  hand, 
the  efficiency  people  and  the  professional  hu- 
manitarians are,  like  all  reformers  and  agi- 
tators, abnormally  vocal;  and  on  the  other 
hand  the  lovers  of  the  old-fashioned  principle 
of  liberty  are  abnormally  silent,  so  far  as  any 
public  manifestation*  is  concerned. 

In  the  foregoing  I  have  admitted,  I  think, 
as  great  a  decline  in  the  current  prestige  of 
the  idea  of  liberty  as  would  be  claimed  by  the 
most  enthusiastic  efficiency  man  or  the  most 
ardent  humanitarian.     I  now  wish  to  insist 


PROHIBITION  AND  LIBERTY  97 

Upon  the  other  side  of  the  matter.  Persons 
who  are  always  ready  to  be  carried  away  with 
the  current — and  their  name  is  legion — con- 
stantly make  the  mistake  of  imagining  that 
the  latest  thing  is  the  last.  They  are  the  first 
to  throw  aside  old  and  venerable  notions  as 
outworn;  they  look  with  condescending  pity 
upon  those  who  are  so  dull  as  not  to  recognize 
the  infinite  potency  of  change;  and  yet, 
curiously  enough,  they  never  think  of  the  pos- 
sibility of  a  change  which  may  reverse  the 
current  of  to-day  just  as  the  current  of  to-day 
has  reversed  that  of  yesterday.  The  tree  of 
liberty  is  less  flourishing  to-day  than  it  was 
fifty  or  a  hundred  years  ago;  its  leaves  are 
not  so  green,  and  it  is  not  so  much  the  object 
of  universal  admiration  and  affection.  But 
its  roots  are  deep  down  in  the  soil;  and  it  sup- 
plies a  need  of  mankind  too  fundamental, 
feeds  an  aspiration  too  closely  linked  with 
all  that  elevates  and  enriches  human  nature, 
to  permit  of  its  being  permanently  neglected 
or  allowed  to  fall  into  decay. 

And  even  at  this  very  time,  as  I  have  indi- 


98       WHAT  PROHIBITION  HAS  DONE 

cated  above,  the  mass  of  the  people — and  I 
mean  great  as  well  as  small,  cultured  and 
wealthy  as  well  as  ignorant  and  poor — retain 
their  instinctive  attachment  to  the  idea  of  lib- 
erty. It  is  chiefly  in  a  small,  but  extremely 
prominent  and  influential,  body  of  over- 
sophisticated  people — specialists  of  one  kind 
or  another — that  the  principle  of  liberty  has 
fallen  into  the  disrepute  to  which  I  have  re- 
ferred. The  prime  reason  why  the  Prohibi- 
tion law  is  so  light-heartedly  violated  by  all 
sorts  and  conditions  of  men,  why  it  is  held  in 
contempt  by  hundreds  of  thousands  of  our 
best  and  most  respected  citizens,  is  that  the 
law  is  a  gross  outrage  upon  personal  liberty. 
Many,  indeed,  would  commit  the  violation  as 
a  mere  matter  of  self-indulgence;  but  it  is  ab- 
surd to  suppose  that  this  would  be  done,  as  it 
is  done,  by  thousands  of  persons  of  the  highest 
type  of  character  and  citizenship.  These 
people  are  sustained  by  the  consciousness  that, 
though  their  conduct  may  be  open  to  criti- 
cism, it  at  least  has  the  justification  of  being 
a  revolt  against  a  law — a  law  unrepealable  by 


PROHIBITION  AND  LIBERTY  99 

any  ordinary  process — that  strikes  at  the  foun- 
dations of  liberty. 

Defenders  of  Prohibition  seek  to  do  away 
with  the  objection  to  it  as  an  invasion  of  per- 
sonal liberty  by  pointing  out  that  all  submis- 
sion to  civil  government  is  in  the  nature  of  a 
surrender  of  personal  liberty.  This  is  true 
enough,  but  only  a  shallow  mind  can  be  con- 
tent with  this  cheap  and  easy  disposition  of 
the  question.  To  any  one  who  stops  to  think 
of  the  subject  with  some  intelligence  it  must 
be  evident  that  the  argument  proves  either 
too  much  or  nothing  at  all.  If  it  means  that 
no  proposed  restriction  can  properly  be  ob- 
jected to  as  an  invasion  of  personal  liberty, 
because  all  restrictions  are  on  the  same  foot- 
ing as  part  of  the  order  of  society,  it  means 
what  every  man  of  sense  would  at  once  declare 
to  be  preposterous;  and  if  it  does  not  mean 
that  it  leaves  the  question  at  issue  wholly  un- 
touched. 

Submission  to  an  orderly  government  does, 
of  course,  involve  the  surrender  of  one's  per- 
sonal freedom  in  countless   directions.     But 


100     WHAT  PROHIBITION  HAS  DONE 

speaking  broadly,  such  surrender  is  exacted, 
under  what  are  generally  known  as  "free  in- 
stitutions," only  to  the  extent  to  which  the 
/right  of  one  man  to  do  as  he  pleases  has  to  be 
restricted  in  order  to  secure  the  elementary 
rights  of  other  meh^from  violation,  or  to  pre- 
serve conditions  that  are  essential  to  the  gen- 
eral welfare.  If  A  steals,  he  steals  from  B; 
if  he  murders,  he  kills  B ;  if  he  commits  arson, 
he  sets  fire  to  B's  house.  If  a  man  makes  a 
loud  noise  in  the  street,  he  disturbs  the  quiet 
of  hundreds  of  his  fellow  citizens,  and  may 
make  life  quite  unendurable  to  them.  There 
are  complexities  into  which  I  cannot  enter  in 
such  matters  as  Sunday  closing  and  kindred 
regulations;  but  upon  examination  it  is  easily 
enough  seen  that  they  fall  in  essence  under 
the  same  principle — the  principle  of  restraint 
upon  one  individual  to  prevent  him  from  in- 
juring not  himself,  but  others. 

A  law  punishing  drunkenness,  which  is  a 
public  nuisance,  comes  under  the  head  I  have 
been  speaking  of;  a  law  forbidding  a  man  to 
drink  for  fear  that  he  may  become  a  drunkard 


PROHIBITION  AND  LIBERTY         101 

does  not.  And  in  fact  the  prohibitionists 
themselves  instinctively  recognize  the  differ- 
ence, and  avoid,  so  far  as  they  can,  offending 
the  sense  of  liberty  by  so  direct  an  attack  upon 
it.  It  is  safe  to  say  that  if  the  Eighteenth 
Amendment  had  undertaken  to  make  the 
drinking  of  liquor  a  crime,  instead  of  the  man- 
ufacture and  sale  of  it,  it  could  not  have  been 
passed  or  come  anywhere  near  being  passed. 
There  is  hardly  a  Senator  or  a  Representative 
that  would  not  have  recoiled  from  a  proposal 
so  palpably  offensive  to  the  instinct  of  liberty. 
Yet  precisely  this  is  the  real  object  of  the 
Eighteenth  Amendment;  its  purpose — and,  if 
enforced,  its  practical  effect — is  to  make  it 
permanently  a  crime  against  the  national  gov- 
ernment for  an  American  to  drink  a  glass  of 
beer  or  wine.  The  legislators.  State  and  na- 
tional, who  enacted  it  knew  this  perfectly 
well;  yet  if  the  thing  had  been  put  into  the 
Amendment  in  so  many  words,  hardly  a  man 
of  them  would  have  cast  his  vote  for  it.  The 
phenomenon  is  not  so  strange,  or  so  novel,  as 
it  might  seem ;  it  has  a  standard  prototype  in 


102     WHAT  PROHIBITION  HAS  DONE 

the  history  of  Rome.  The  Roman  people  had 
a  rooted  aversion  and  hostility  to  kings;  and 
no  Caesar  would  ever  have  thought  of  calling 
himself  rex.  But  imperator  went  down  quite 
smoothly,  and  did  just  as  well. 

In  addition  to  its  being  a  regulation  of  in- 
dividual conduct  in  a  matter  which  is  in  its 
nature  the  individual's  own  concern,  Prohibi- 
tion differs  in  another  essential  respect  from 
those  restrictions  upon  liberty  which  form  a 
legitimate  and  necessary  part  of  the  opera- 
tion of  civil  government.  To  put  a  govern- 
mental ban  upon  all  alcoholic  drinks  is  to 
forbid  the  use  of  a  thing  in  order  to  prevent  its 
abuse.  Of  course  there  are  fanatics  who  de- 
clare— and  believe — that  all  indulgence  in 
alcoholic  drink,  however  moderate,  is  abuse; 
but  to  justify  Prohibition  on  that  ground 
would  be  to  accept  a  doctrine  even  more  dan- 
gerous to  liberty.  It  is  bad  enough  to  justify 
the  proscription  of  an  innocent  indulgence  on 
the  ground  that  there  is  danger  of  its  being 
carried  beyond  the  point  of  innocence;  but  it 
is  far  worse  to  forbid  it  on  the  ground  that, 


PROHIBITION  AND  LIBERTY         103 

however  innocent  and  beneficial  a  moderate 
indulgence  may  seem  to  millions  of  people, 
it  is  not  regarded  as  good  for  them  by  others. 
The  only  thing  that  lends  dignity  to  the  Pro- 
hibition cause  is  the  undeniable  fact  that 
drunkenness  is  the  source  of  a  vast  amount  of 
evil  and  wretchedness;  the  position  of  those 
who  declare  that  all  objections  must  be  waived 
in  the  presence  of  this  paramount  considera- 
tion is  respectable,  though  in  my  judgment 
utterly  wrong.  But  any  man  who  justifies 
Prohibition  on  the  ground  that  drinking  is 
an  evil,  no  matter  how  temperate,  is  either  a 
man  of  narrow  and  stupid  mind  or  is  utterly 
blind  to  the  value  of  human  liberty.  The 
ardent  old-time  Prohibitionist — the  man  who 
thinks,  however  mistakenly,  that  the  abolition 
of  intoxicating  drinks  means  the  salvation  of 
mankind — counts  the  impairment  of  liberty 
as  a  small  matter  in  comparison  with  his 
world-saving  reform;  this  is  a  position  from 
which  one  cannot  withhold  a  certain  measure 
of  sympathy  and  respect.  But  to  justify  the 
sacrifice  of  liberty  on  the  ground  that  the  man 


104     WHAT  PROHIBITION  HAS  DONE 

who  is  deprived  of  it  will  be  somewhat  better 
off  without  it  is  to  assume  a  position  that  is  at 
once  contemptible  and  in  the  highest  degree 
dangerous.  Contemptible,  because  it  argues 
a  total  failure  to  understand  what  liberty 
means  to  mankind;  dangerous,  because  there 
is  no  limit  to  the  monstrosities  of  legislation 
which  may  flow  from  the  acceptance  of  such 
a  view.  Esau  sold  his  birthright  to  Jacob 
for  a  mess  of  pottage  which  he  wanted ;  these 
people  would  rob  us  of  our  birthright  and  by 
way  of  compensation  thrust  upon  us  a  mess  of 
pottage  for  which  we  have  no  desire. 

Rejecting,  then,  the  preposterous  notion  of 
extreme  fanatics — whether  the  fanatics  of  sci- 
ence or  the  fanatics  of  moral  reform — ^we  have 
in  Prohibition  a  restraint  upon  the  liberty  of  the 
individual  which  is  designed  not  to  protect 
the  rights  of  other  individuals  or  to  serve  the 
manifest  requirements  of  civil  government, 
but  to  prevent  the  individual  from  injuring 
himself  by  pursuing  his  own  happiness  in  his 
own  way;  the  case  being  further  aggravated 
by  the  circumstance  that  in  order  to  make  this 


PROHIBITION  AND  LIBERTY         105 

injury  impossible  he  is  denied  even  such  ac- 
cess to  the  forbidden  thing  as  would  not — 
except  in  a  sense  that  it  is  absurd  to  consider 
— be  injurious.  Now  this  may  be  benevolent 
despotism,  but  despotism  it  is;  and  the  people 
that  accustoms  itself  to  the  acceptance  of  such 
despotism,  whether  at  the  hands  of  a  monarch, 
or  an  oligarchy,  or  a  democracy,  has  aban- 
doned the  cause  of  liberty.  For  there  is 
hardly  any  conceivable  encroachment  upon 
individual  freedom  which  would  be  a  more 
flagrant  offense  against  that  principle  than  is 
one  that  makes  an  iron-bound  rule  command- 
ing a  man  to  conform  his  personal  habits  to 
the  judgment  of  his  rulers  as  to  what  is  best 
for  him.  I  do  not  mean  to  assert  that  it  nec- 
essarily follows  that  such  encroachments  will 
actually  come  thick  and  fast  on  the  heels  of 
Prohibition.  Any  specific  proposal  will,  of 
course,  be  opposed  by  those  who  do  not  like 
it,  and  may  have  a  much  harder  time  than 
Prohibition  to  acquire  the  following  necessary 
to  bring  about  its  adoption.  But  the  resist- 
ance to  it  on  specific  grounds  will  lack  the 


106     WHAT  PROHIBITION  HAS  DONE 

Strength  which  it  would  derive  from  a  pro- 
found respect  for  the  general  principle  of  lib- 
erty; whatever  else  may  be  said  against  it,  it 
will  be  impossible  to  make  good  the  objection 
that  it  sets  an  evil  precedent  of  disregard  for 
the  claims  of  that  principle.  The  Eighteenth 
Amendment  is  so  gross  an  instance  of  such 
disregard  that  it  can  hardly  be  surpassed  by 
anything  that  is  at  all  likely  to  be  proposed. 
And  if  the  establishment  of  that  precedent 
should  fail  actually  to  work  so  disastrous  an 
injury  to  the  cause  of  liberty,  we  must  thank 
the  wide-spread  and  impressive  resistance  that 
it  has  aroused.  Had  the  people  meekly 
bowed  their  heads  to  the  yoke,  the  Prohibi- 
tion Amendment  would  furnish  unfailing  in- 
spiration and  unstinted  encouragement  to 
every  new  attack  upon  personal  liberty;  as  it 
is,  we  may  be  permitted  to  hope  that  its  injury 
to  our  future  as  a  free  people  will  prove  to 
be  neither  so  profound  nor  so  lasting  as  in  its 
nature  it  is  calculated  to  be. 

Before  dismissing  this  subject  it  will  be  well 
to  consider  one  favorite  argument  of  those 


PROHIBITION  AND  LIBERTY         107 

who  contend  that  Prohibition  is  no  more  ob- 
noxious to  the  charge  of  being  a  violation  of 
personal  liberty  than  are  certain  other  laws 
which  are  accepted  as  matters  of  course.  A 
law  prohibiting  narcotic  drugs,  they  say,  im- 
poses a  restraint  upon  personal  liberty  of  the 
same  sort  as  does  a  law  prohibiting  alcoholic 
liquors.  And  it  must  be  admitted  that  there 
is  some  plausibility  in  the  argument.  The 
answer  to  it  is  not  so  simple  as  that  to  the 
broader  pleas  which  have  been  discussed 
above.  Yet  the  answer  is  not  less  conclusive. 
There  is  no  principle  of  human  conduct  that 
can  be  applied  with  undeviating  rigor  to  all 
cases;  and  indeed  it  is  part  of  the  price  of  the 
maintenance  of  the  principle  that  it  shall  be 
waived  in  extreme  instances  in  which  its  rigor- 
ous enforcement  would  shock  the  common  in- 
stincts of  mankind.  Illustrations  of  this  can 
be  found  in  almost  every  domain  of  human 
action — in  the  everyday  life  of  each  one  of  us, 
in  the  practice  of  the  professions,  in  the  pro- 
cedure of  courts  and  juries,  as  well  as  in  the 
field  of  law-making.     It  is  wrong  to  tell  a 


108     WHAT  PROHIBITION  HAS  DONE 

lie,  and  there  are  a  few  doctrinaire  extremists 
who  maintain  that  lying  is  not  excusable  under 
any  circumstances;  but  the  common  sense  of 
mankind  declares  that  it  is  right  for  a  man 
to  lie  in  order  to  deceive  a  murderer  who  is 
seeking  his  mother's  life.  Physicians  almost 
unanimously  profess,  and  honestly  profess,  the 
principle  that  human  life  must  be  preserved 
as  long  as  possible,  no  matter  how  desperate 
the  case  may  seem ;  yet  I  doubt  whether  there 
is  a  single  physician  who  does  not  mercifully 
refrain  from  prolonging  life  by  all  possible 
means  in  cases  of  extreme  and  hopeless  agony. 
Murder  is  murder,  and  it  is  the  sworn  duty  of 
juries  to  find  accordingly;  yet  the  doctrine  of 
the  '^unwritten  law" — while  unquestionably 
far  too  often  resorted  to,  and  thus  constituting 
a  grave  defect  in  our  administration  of  crim- 
inal justice — is  in  some  extreme  cases  properly 
invoked  to  prevent  an  outrage  on  the  elemen- 
tary instincts  of  justice.  In  all  these  instances 
we  have  a  principle  universally  acknowledged 
and  profoundly  respected;  and  the  waiver  of 
it  in  extreme  cases,  so  far  from  weakening  the 


PROHIBITION  AND  LIBERTY         109 

principle,  actually  strengthens  it — since  if  it 
absolutely  never  bent  it  would  be  sure  to 
break. 

And  so  it  is  with  the  basic  principles  of 
legislation.  To  forbid  the  use  of  narcotic 
drugs  is  a  restraint  of  liberty  of  the  same  kind 
as  to  forbid  the  use  of  alcoholic  liquors;  but 
in  degree  the  two  are  wide  as  the  poles 
asunder.  The  use  of  narcotic  drugs  (except 
as  medicine)  is  so  unmitigatedly  harmful  that 
there  is  perhaps  hardly  a  human  being  who 
contends  that  it  is  otherwise.  People  crave 
it,  but  they  are  ashamed  of  the  craving.  It 
plays  no  part  in  any  acknowledged  form  of 
human  intercourse;  it  is  connected  with  no 
joys  or  benefits  that  normal  human  beings 
openly  prize.  A  thing  which  is  so  wholly  evil, 
and  which,  moreover,  so  swiftly  and  insid- 
iously renders  powerless  the  will  of  those  who 
— perhaps  by  some  accident — once  begin  to 
indulge  in  it,  stands  outside  the  category  alike 
of  the  ordinary  objects  of  human  desire  and 
the  ordinary  causes  of  human  degradation. 
To  make  an  exception  to  the  principle  of  lib- 


110     WHAT  PROHIBITION  HAS  DONE 

erty  in  such  a  case  is  to  do  just  what  common 
sense  dictates  in  scores  of  instances  where  the 
strict  application  of  a  general  principle  to 
extreme  cases  would  involve  an  intolerable 
sacrifice  of  good  in  order  to  remove  a  mere 
superficial  appearance  of  wrong.  To  make 
the  prohibition  of  narcotic  drugs  an  adequate 
reason  for  not  objecting  to  the  prohibition  of 
alcoholic  drinks  would  be  like  calling  upon 
physicians  to  throw  into  the  scrap  heap  their 
principle  of  the  absolute  sanctity  of  human 
life  because  they  do  not  apply  that  principle 
with  literal  rigor  in  cases  where  to  do  so 
would  be  an  act  of  inhuman  and  unmitigated 
cruelty. 


CHAPTER  X 
PROHIBITION  AND  SOCIALISM 

In  the  foregoing  chapter  I  have  said  that 
while  absorption  in  the  idea,  of  democracy  has 
had  a  tendency  to  impair  devotion  to  the  idea 
of  liberty,  yet  that  in  democracy  itself  there 
is  no  inherent  opposition  to  liberty.  The 
danger  to  individual  liberty  in  a  democracy 
is  of  the  same  nature  as  the  danger  to  indi- 
vidual liberty  in  a  monarchy  or  an  oligarchy; 
whether  powxr  be  held  by  one  man,  or  by  a 
thousand,  or  by  a  majority  out  of  a  hundred 
million,  it  is  equally  possible  for  the  govern- 
ing power  on  the  one  hand  to  respect,  or  on 
the  other  hand  to  ignore,  the  right  of  indi- 
viduals to  the  free  play  of  their  individual 
powers,  the  exercise  of  their  individual  pre- 
dilections, the  leading  of  their  individual  lives 
according  to  their  own  notions  of  what  is  right 

or  desirable.     A  monarch  of  enlightened  and 

111 


112     WHAT  PROHIBITION  HAS  DONR 

liberal  mind  will  respect  that  right,  and  limit 
his  encroachments  upon  it  to  the  minimum 
required  for  the  essential  objects  of  reasonable 
government;  so,  too,  will  a  democracy  if  it  is 
of  like  temper  and  intelligence. 

But  it  is  not  so  with  Socialism.  Numerous 
as  are  the  varieties  of  Socialism,  they  all  agree 
in  being  inherently  antagonistic  to  individual- 
ism. It  may  be  pleaded,  in  criticism  of  this 
assertion,  that  all  government  is  opposed  to 
individualism;  that  the  difference  in  this  re- 
spect between  Socialism  and  other  forms  of 
civil  organization  is  only  one  of  degree;  that 
we  make  a  surrender  of  individuality,  as  well 
as  of  liberty,  when  we  consent  to  live  in  any 
organized  form  of  society.  It  is  not  worth 
while  to  dispute  the  point;  the  difference  may, 
if  one  chooses,  be  regarded  as  only  a  difference 
of  degree.  But  when  a  difference  of  degree 
goes  to  such  a  point  that  what  is  minor,  inci- 
dental, exceptional  in  the  one  case,  is  para- 
mount, essential,  pervasive  in  the  other,  the 
difference  is,  for  all  the  purposes  of  thinking, 
equivalent  to  a  difference  of  kind.     Socialism 


PROHIBITION  AND  SOCIALISM       113 

is  in  its  very  essence  opposed  to  individualism. 
It  makes  the  collective  welfare  not  an  inci- 
dental concern  of  each  man's  daily  life,  but 
his  primary  concern.  The  standard  it  sets 
up,  the  regulations  it  establishes,  are  not  things 
that  a  man  must  merely  take  account  of  as 
special  restraints  on  his  freedom,  exceptional 
limitations  on  the  exercise  of  his  individual- 
ity; they  constitute  the  basic  conditions  of  his 
life. 

When  the  Socialist  movement  was  in  its 
infancy  in  this  country — though  it  had  made 
great  headway  in  several  of  the  leading  coun- 
tries of  Europe — the  customary  way  of  dis- 
posing of  it  was  with  a  mere  wave  of  the  hand. 
Socialism  can  never  work;  it  is  contrary  to 
human  nature — these  simple  assertions  were 
regarded  by  nearly  all  conservatives  as  suffi- 
cient to  settle  the  matter  in  the  minds  of  all 
sensible  persons  That  is  now  no  longer  so 
much  the  fashion;  yet  I  have  no  doubt  that  a 
very  large  proportion  of  those  who  are  op- 
posed to  Socialism  are  still  content  with  this 
way  of  disposing  of  it.     But  Socialism  has 


114     WHAT  PROHIBITION  HAS  DONE 

Steadily — though  of  course  with  fluctuations 
— increased  in  strength,  in  America  as  well  as 
in  Europe,  for  many  decades;  and  it  would 
be  folly  to  imagine  that  mere  declarations  of 
its  being  '^impracticable,"  or  ''contrary  to  hu- 
man nature,"  will  suffice  to  check  it.  Millions 
of  men  and  women,  here  in  America — ranging 
in  intellect  all  the  way  from  the  most  cultured 
to  the  most  ignorant — are  filled  with  an  ardent 
faith  that  in  Socialism,  and  in  nothing  else,  is 
to  be  found  the  remedy  for  all  the  great  evils 
under  which  mankind  suffers;  and  there  is  no 
sign  of  slackening  in  the  growth  of  this  faith. 
When  the  time  comes  for  a  real  test  of  its 
strength — when  it  shall  have  gathered  such 
force  as  to  be  able  to  throw  down  a  real  chal- 
lenge to  the  conservative  forces  in  the  political 
field — it  is  absurd  to  suppose  that  those  who 
are  inclined  to  welcome  it  as  the  salvation  of 
the  world  will  be  frightened  off  by  prophecies 
of  failure.  They  will  want  to  make  the  trial ; 
and  they  will  make  the  trial,  regardless  of  all 
prophecies  of  disaster,  if  the  people  shall  have 
come  to  believe  that  the  object  is  a  desirable 


PROHIBITION  AND  SOCIALISM       115 

one — that  Socialism  is  a  form  of  life  which 
they  would  like  after  they  got  it. 

The  one  great  bulwark  against  Socialism 
is  the  sentiment  of  liberty.  If  we  find  nothing 
obnoxious  in  universal  regimentation;  if  we 
feel  that  life  would  have  as  much  savor  when 
all  of  us  were  told  off  to  our  tasks,  or  at  least 
circumscribed  and  supervised  in  our  activi- 
ties, by  a  swarm  of  officials  carrying  out  the 
benevolent  edicts  of  a  paternal  Government; 
if  we  hold  as  of  no  account  the  exerciseof  indi- 
vidual choice  and  the  development  of  indi- 
vidual potentialities  which  are  the  very  life- 
blood  of  the  existing  order  of  society;  if  all 
these  things  hold  no  value  for  us,  then  we  shall 
gravitate  to  Socialism  as  surely  as  a  river  will 
find  its  way  to  the  sea.  Socialism — granted 
its  practicability,  and  its  practicability  can 
never  be  disproved  except  by  trial,  by  long 
and  repeated  trial — holds  out  the  promise  of 
great  blessings  to  mankind.  And  some  of 
these  blessings  it  is  actually  capable  of  fur- 
nishing, even  if  in  the  end  it  should  prove  to 
be  a  failure.     Above  all  it  could  completely 


116     WHAT  PROHIBITION  HAS  DONE 

abolish  poverty — that  is,  anything  like  abject 
poverty.  The  productive  power  of  mankind, 
thanks  to  the  progress  of  science  and  inven- 
tion, is  now  so  great  that,  even  if  Socialism 
were  to  bring  about  a  very  great  decline  of 
productiveness — not,  to  be  sure,  such  utter 
blasting  of  productiveness  as  has  been  caused 
by  the  Bolshevik  insanity — there  would  yet 
be  amply  enough  to  supply,  by  equal  distribu- 
tion, the  simple  needs  of  all  the  people.  Be- 
sides the  abolition  of  poverty,  there  would  be 
the  extinction  of  many  sinister  forms  of  com- 
petitive greed  and  dishonesty.  To  the  eye 
of  the  thinking  conservative,  these  things — 
poverty,  greed,  dishonesty — while  serious 
evils,  are  but  the  blemishes  in  a  great  and 
wholesome  scheme  of  human  life;  drawbacks 
which  go  with  the  benefits  of  a  system  in 
which  each  man  is  free,  within  certain  neces- 
sary limits,  to  do  his  best  or  his  worst;  a  price 
such  as,  in  this  imperfect  world,  we  have  to 
pay  for  anything  that  is  worth  having.  But 
to  the  Socialist  the  matter  presents  itself  in 
no   such   light.     He   sees   a   mass   of  misery 


PROHIBITION  AND  SOCIALISM       117 

which  he  believes — and  in  large  measure 
justly  believes — Socialism  would  put  an  end 
to;  and  he  has  no  patience  with  the  conserva- 
tive who  points  out — and  justly  points  out — 
that  the  poverty  is  being  steadily,  though 
gradually,  overcome  in  the  advance  of  man- 
kind under  the  existing  order.  ^'Away  with 
it,"  he  says;  "we  cannot  wait  a  hundred  years 
for  that  which  we  have  a  right  to  demand 
to-day." 

And  '^away  with  it"  we  ought  all  to  say,  if 
Socialism,  while  doing  away  with  it,  would 
not  be  doing  away  with  something  else  of  in- 
finite value  and  infinite  benefit  to  mankind, 
both  material  and  spiritual;  something  with 
which  is  bound  up  the  richness  and  zest  of 
life,  not  only  for  what  it  is  the  fashion  of  rad- 
icals to  call  ''the  privileged  few,"  but  for  the 
great  mass  of  mankind.  That  something  is 
liberty,  and  the  individuality  which  is  insep- 
arably bound  up  with  liberty.  The  essence 
of  Socialism  is  the  suppression  of  individual- 
ity, the  exaltation  of  the  collective  will  and 
the  collective  interest,  the  submergence  of  the 


118     WHAT  PROHIBITION  HAS  DONE 

individual  will  and  the  individual  interest. 
The  particular  form — even  the  particular  de- 
gree— of  coercion  by  which  this  submergence 
is  brought  about  varies  with  the  different 
types  of  Socialism;  but  they  all  agree  in  the 
essential  fact  of  the  submergence.  Socialism 
may  possibly  be  compatible  with  prosperity, 
with  contentment;  it  is  not  compatible  with 
liberty,  not  compatible  with  individuality. 

I  am,  of  course,  not  undertaking  here  to 
discuss  the  merits  of  Socialism;  my  purpose 
is  only  to  point  out  that  those  who  are  hostile 
to  Socialism  must  cherish  liberty.  And  it  is 
vain  to  cherish  liberty  in  the  abstract  if  you 
are  doing  your  best  to  dry  up  the  very  source 
of  the  love  of  liberty  in  the  concrete  workings 
of  every  man's  daily  experience.  With  the 
plain  man — indeed  with  men  in  general,  plain 
or  otherwise — love  of  liberty,  or  of  any  elemen- 
tal concept,  is  strong  only  if  it  is  instinctive; 
and  it  cannot  be  instinctive  if  it  is  jarred  every 
day  by  habitual  and  unresented  experience 
of  its  opposite.  Prohibition  is  a  restraint  of 
liberty  so  clearly  unrelated  to  any  primary 


PROHIBITION  AND  SOCIALISM       119 

need  of  the  state,  so  palpably  bearing  on  the 
most  personal  aspect  of  a  man's  own  conduct, 
that  it  is  impossible  to  acquiesce  in  it  and 
retain  a  genuine  and  lively  feeling  of  abhor- 
rence for  any  other  threatened  invasion  of  the 
domain  of  liberty  which  can  claim  the  justi- 
fication of  being  intended  for  the  benefit  of 
the  poor  or  unfortunate. 

So  long  as  Prohibition  was  a  local  measure, 
so  long  even  as  it  was  a  measure  of  State  leg- 
islation, this  effect  did  not  follow;  or,  if  at 
all,  only  in  a  small  degree.  People  did  not  re- 
gard it  as  a  dominant,  and  above  all  as  a  para- 
mount and  inescapable,  part  of  the  national 
life.  But  decreed  for  the  whole  nation,  and 
imbedded  permanently  in  the  Constitution,  it 
will  have  an  immeasurable  effect  in  impair- 
ing that  instinct  of  liberty  which  has  been  the 
very  heart  of  the  American  spirit;  and  with 
the  loss  of  that  spirit  will  be  lost  the  one  great 
and  enduring  defense  against  Socialism.  It 
is  not  by  the  argumentation  of  economists,  nor 
by  the  calculations  of  statisticians,  that  the 
Socialist  advance  can  be  halted.     The  real 


120     WHAT  PROHIBITION  HAS  DONE 

Struggle  will  be  a  struggle  not  of  the  mind  but 
of  the  spirit;  it  will  be  Socialism  and  regimen- 
tation against  individualism  and  liberty.  The 
cause  of  Prohibition  has  owed  its  rapid  suc- 
cess in  no  small  measure  to  the  support  of 
great  capitalists  and  industrialists  bent  upon 
the  absorbing  object  of  productive  efficiency; 
but  they  have  paid  a  price  they  little  realize. 
For  in  the  attainment  of  this  minor  object, 
they  have  made  a  tremendous  breach  in  the 
greatest  defense  of  the  existing  order  of  so- 
ciety against  the  advancing  enemy.  To 
undermine  the  foundations  of  Liberty  is  to 
open  the  way  to  Socialism. 


CHAPTER  XI 
IS  THERE  ANY  WAY  OUT? 

In  the  second  chapter  of  this  book,  I  under- 
took to  give  an  account  of  the  state  of  mind 
which  the  enactment  of  the  Eighteenth 
Amendment  has  created,  and  which  is  at  the 
bottom  of  that  contempt  for  the  law  whose 
widespread  prevalence  among  the  best  ele- 
ments of  our  population  is  acknowledged  alike 
by  prohibitionists  and  anti-prohibitionists. 
^'People  feel  in  their  hearts,''  I  said,  "that 
they  are  confronted  with  no  other  choice  but 
that  of  either  submitting  to  the  full  rigor  of 
Prohibition,  of  trying  to  procure  a  law  which 
nullifies  the  Constitution,  or  of  expressing 
their  resentment  against  an  outrage  on  the 
first  principles  of  the  Constitution  by  con- 
temptuous disregard  of  the  law."  It  is  a  de- 
plorable choice  of  evils;  a  state  of  things 
which  it  is  hardly  too  much  to  call  appalling 
in  its  potentialities  of  civic  demoralization. 

121 


122     WHAT  PROHIBITION  HAS  DONE 

And  one  who  realizes  the  gravity  of  the  injury 
that  a  long  continuance  of  this  situation  will 
inevitably  inflict  upon  our  institutions  and  our 
national  character  must  ask  whether  there  is 
any  practical  possibility  of  escape  from  it. 

The  right  means,  and  the  only  entirely  sat- 
isfactory means,  of  escape  from  it  is  through 
the  undoing  of  the  error  which  brought  it 
about — that  is,  through  the  repeal  of  the 
Eighteenth  Amendment.  Towards  that  end 
many  earnest  and  patriotic  citizens  are  work- 
ing; but  of  course  they  realize  the  stupendous 
difficulty  of  the  task  they  have  undertaken. 
As  a  rule,  these  men,  while  working  for  the 
distant  goal  of  repeal  of  the  Amendment,  are 
seeking  to  substitute  for  the  Volstead  act  a 
law  which  will  permit  the  manufacture  and 
sale  of  beer  and  light  wines;  a  plan  which,  as 
I  have  elsewhere  stated,  while  by  no  means 
free  from  grave  objection — for  it  is  clearly 
not  in  keeping  with  the  intent  of  the  Eight- 
eenth Amendment — would,  in  my  judgment, 
be  an  improvement  on  the  present  state  of 
things.     But  it  is  not  pleasant  to  contemplate 


IS  THERE  ANY  WAY  OUT?    123 

a  situation  in  which,  to  avoid  something  still 
worse,  the  national  legislature  is  driven  to  the 
deliberate  enactment  of  a  law  that  flies  in  the 
face  of  a  mandate  of  the  Constitution. 

A  possible  plan  exists,  however,  which  is 
not  open  to  this  objection,  and  yet  the  execu- 
tion of  which  would  not  present  such  terrific 
difficulty  as  would  the  proposal  of  a  simple 
repeal  of  the  Eighteenth  Amendment.  That 
Amendment  imbeds  Prohibition  in  the  or- 
ganic law  of  the  country,  and  thus  not  only 
imposes  it  upon  the  individual  States  regard- 
less of  what  their  desires  may  be,  but  takes 
away  from  the  nation  itself  the  right  to  legis- 
late upon  the  subject  by  the  ordinary  proc- 
esses of  law-making.  Now  an  Amendment 
repealing  the  Eighteenth  Amendment  but  at 
the  same  time  conferring  upon  Congress  the 
power  to  make  laws  concerning  the  manufac- 
ture, sale  and  transportation  of  intoxicating 
liquors,  would  make  it  possible  for  Congress 
to  pass  a  Volstead  act,  or  a  beer-and-wine  act, 
or  no  liquor  act  at  all,  just  as  its  own  judg- 
ment or  desire  might  dictate.     It  would  give 


124     WHAT  PROHIBITION  HAS  DONE 

the  Federal  Government  a  power  which  I 
think  it  would  be  far  more  wholesome  to  re- 
serve to  the  States ;  but  it  would  get  rid  of  the 
worst  part  of  the  Eighteenth  Amendment. 
And  it  would  have,  I  think,  an  incomparably 
more  favorable  reception,  from  the  start,  than 
would  a  proposal  of  simple  repeal.  For  the 
public  could  readily  be  brought  to  see  the 
reasonableness  of  giving  the  nation  a  chance, 
through  its  representatives  at  Washington,  to 
express  its  will  on  the  subject  from  time  to 
time,  and  the  unreasonableness  of  binding  gen- 
eration after  generation  to  helpless  submis- 
sion. The  plea  of  majority  rule  is  always  a 
taking  one  in  this  country;  and  it  is  rarely  that 
that  plea  rests  on  stronger  ground  than  it 
would  in  this  instance.  The  one  strong  argu- 
ment which  might  be  urged  against  the  pro- 
posal— namely  that  such  a  provision  would 
make  Prohibition  a  constant  issue  in  national 
elections,  while  the  actual  incorporation  of 
Prohibition  in  the  Constitution  settles  the 
matter  once  for  all — has  been  deprived  of  all 
its  force  by  our  actual  experience.     So  far 


IS  THERE  ANY  WAY  OUT?    125 

from  settling  the  matter  once  for  all,  the 
Eighteenth  Amendment  has  been  a  frightful 
breeder  of  unsettlement  and  contention,  which 
bids  fair  to  continue  indefinitely. 

I  have  offered  this  suggestion  for  what  it 
may  be  worth  as  a  practical  proposal;  it  seems 
certainly  deserving  of  discussion,  and  I  could 
not  refrain  from  putting  it  forward  as  a  pos- 
sible means  of  relief  from  an  intolerable  situ- 
ation. But  I  do  not  wish  to  wind  up  on  that 
note.  The  right  solution — a  solution  incom- 
parably better  than  this  which  I  have  sug- 
gested on  account  of  its  apparently  better 
chance  of  acceptance — is  the  outright  repeal 
of  the  Eighteenth  Amendment.  And  more- 
over, the  primary  need  of  this  moment  is  not 
so  much  any  practical  proposal  likely  to  be 
quickly  realized  as  the  awakening  of  the  pub- 
lic mind  to  the  fundamental  issues  of  the  case 
— the  essential  principles  of  law,  of  govern- 
ment, and  of  individual  life  which  are  so  fla- 
grantly sinned  against  by  the  Prohibition 
Amendment. 


126     WHAT  PROHIBITION  HAS  DONE 

To  the  exposition  of  those  fundamental 
issues  this  little  book  has  been  almost  exclu- 
sively confined.  It  has  left  untouched  a  score 
of  aspects  of  the  question  of  drink,  and  of  the 
prohibition  of  drink,  which  it  would  have 
been  interesting  to  discuss,  and  the  discussion 
of  which  would,  I  feel  sure,  have  added  to  the 
strength  of  the  argument  I  have  endeavored 
to  present.  But  there  is  an  advantage,  too, 
in  keeping  to  the  high  points.  It  is  not  to  a 
multiplicity  of  details  that  one  must  trust  in 
a  case  like  this.  What  is  needed  above  all  is 
a  clear  and  whole-hearted  recognition  of  fun- 
damentals. And  I  do  not  believe  that  the 
American  people  have  got  so  far  away  from 
their  fundamentals  that  such  recognition  will 
be  denied  when  the  case  is  clearly  put  before 
them. 

There  is  one  and  only  one  thing  that  could 
justify  such  a  violation  of  liberty  and  of  the 
cardinal  principles  of  rational  government  as 
is  embodied  in  the  Eighteenth  Amendment. 
In  the  face  of  desperate  necessity,  there  may 
be  justification  for  the  most  desperate  remedy. 


IS  THERE  ANY  WAY  OUT?    127 

But  so  far  from  this  being  a  case  of  desperate 
necessity,  nothing  is  more  unanimously  ac- 
knowledged by  all  except  those  who  labor  un- 
der an  obsession,  than  that  the  evil  of  drink  has 
been  steadily  diminishing.  Not  only  during 
the  period  of  Prohibition  agitation,  but  for 
many  decades  before  that,  drunkenness  had 
been  rapidly  declining,  and  both  temperate 
drinking  and  total  abstinence  correspondingly 
increasing.  It  is  unnecessary  to  appeal  to 
statistics.  The  familiar  experience  of  every 
man  whose  memory  runs  back  twenty,or  forty, 
or  sixty  years,  is  sufficient  to  put  the  case  be- 
yond question;  and  every  species  of  literary 
and  historical  record  confirms  the  conclusion. 
This  violent  assault  upon  liberty,  this  crude 
defiance  of  the  most  settled  principles  of  law- 
making and  of  government,  this  division  of 
the  country — as  it  has  been  well  expressed — 
into  the  hunters  and  the  hunted,  this  sowing 
of  dragons'  teeth  in  the  shape  of  lawlessness 
and  contempt  for  law,  has  not  been  the  dic- 
tate of  imperious  necessity,  but  the  indulgence 
of  the  crude  desire  of  a  highly  organized  but 


128     WHAT  PROHIBITION  HAS  DONE 

one-idead  minority  to  impose  its  standards  of 
conduct  upon  all  of  the  American  people. 

To  shake  off  this  tyranny  is  one  of  the 
worthiest  objects  to  which  good  Americans 
can  devote  themselves.  To  shake  it  off  would 
mean  not  only  to  regain  what  has  been  lost  by 
this  particular  enactment,  but  to  forefend  the 
infliction  of  similar  outrages  in  the  future. 
If  it  is  allowed  to  stand,  there  is  no  telling  in 
what  quarter  the  next  invasion  of  liberty  will 
be  made  by  fanatics  possessed  with  the  itch 
for  perfection.  I  am  not  thinking  of  tobacco, 
or  anything  of  the  kind;  twenty  years  from 
now,  or  fifty  years  from  now,  it  may  be  re- 
ligion, or  some  other  domain  of  life  which 
at  the  present  moment  seems  free  from  the 
danger  of  attack.  The  time  to  call  a  halt  is 
now;  and  the  way  to  call  a  halt  is  to  win  back 
the  ground  that  has  already  been  lost.  To  do 
that  will  be  a  splendid  victory  for  all  that  we 
used  to  think  of  as  American — for  liberty, 
for  individuality,  for  the  freedom  of  each  man 
to  conduct  his  own  life  in  his  own  way  so  long 
as  he  does  not  violate  the  rights  of  others,  for 


IS  THERE  ANY  WAY  OUT?    129 

the  responsibility  of  each  man  for  the  evils  he 
brings  upon  himself  by  the  abuse  of  that  free- 
dom. May  the  day  be  not  far  distant  when 
we  shall  once  more  be  a  nation  of  sturdy  free- 
men— not  kept  from  mischief  to  ourselves  by 
a  paternal  law  copper-fastened  in  the  Consti- 
tution, not  watched  like  children  by  a  host  of 
guardians  and  spies  and  informers,  but  up- 
standing Americans  loyally  obedient  to  the 
Constitution,  because  living  under  a  Consti- 
tution which  a  people  of  manly  freemen  can 
whole-heartedly  respect  and  cherish. 


THE  END 


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Connecticut 

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